Incremental Facilities. The Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (LTC Properties Inc), Credit Agreement (LTC Properties Inc), Credit Agreement (LTC Properties Inc)
Incremental Facilities. (a) The Parent Borrower and/or any Additional Borrower and any one or more Lenders (including New Lenders) may request, from time to timetime agree that such Lenders shall make, on obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any Business Day prior to the date that is sixty (60) days prior to the Stated such increased Revolving Credit Termination Date 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 written notice executing and delivering to the Administrative Agent in an Additional Credit Extension Amendment specifying (i) the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date amount of such increase (and the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increaseFacility or Facilities involved, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”)Loans, by an amount not in excess of $500,000,000 in (w) the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify applicable Incremental Term Maturity Date, (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or amortization schedule for such Incremental Term Loan Commitments, as applicable, shall be effective, Loans and (y) the identity Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of each Lenderall 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 other 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 an Eligible Assignee not a Loan Party;
(eachG) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), an “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 Lender” of such Borrower (and, in the case of Eurocurrency Loans or an “Incremental Term Loan Lender”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, to whom the Eurocurrency Tranche or Term Benchmark Tranche had been borrowed or effected by such Borrower proposes any portion of on such Incremental Revolving Credit Commitments Facility Closing Date and (ii) the aggregate amount of each such Type, Eurocurrency Tranche or Incremental 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 Commitmentsor 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 allocated agreed upon between the Parent Borrower and the amount relevant Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of such allocations; provided that Administrative Agent may elect or decline the parties hereto hereby agrees that, on each Incremental Facility Closing Date, this Agreement shall be amended to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, the extent (but only to the extent) necessary to reflect the existence and any Lender approached to provide all or a portion terms of the Incremental Term Loans or Revolving Credit Commitments or Incremental Term Loan Commitments evidenced thereby. Any such amendment may elect or decline, be effected in its sole discretion, writing by the Administrative Agent and the Parent Borrower and furnished to provide an the other parties hereto.
(e) The Closing Date Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date Commitments shall be designated a separate series identified by provided on the year of maturity of such Closing Date as Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing Revolving Commitments, subject to the conditions set forth in Section 5 to the same year) (each, a “Series”) of Incremental Term Loans for all purposes of 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 Borrower may requestmay, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the form attached hereto as Exhibit G aggregate amount of Incremental Commitments established at or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) time does not exceed $100,000,000. Such notice shall set forth (i) an increase to the then existing Revolving Credit amount of the Incremental Commitments being requested (any such increasewhich shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of one such notice (or more new term loan commitments (any such increase, longer or shorter period as the “Incremental Term Loan Commitments”Administrative Agent shall agree)), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate (iii) whether such Incremental Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.
(b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Lender approached Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to provide all materiality) on and as of the date such Incremental Commitments become effective (or a portion if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c).
(c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Revolving Credit Commitments or Term Loans shall be determined by the Borrower and the Incremental Term Loan Commitments may elect or decline, Lenders and set forth in its sole discretion, to provide an the applicable Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the year of maturity Yield Differential, effective upon the making of such Incremental Term Loans and (or month and year if there are multiple v) to the extent the terms of the Incremental Term Loans maturing are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder).
(d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the same year) (eachreasonable opinion of the Administrative Agent and the Borrower, a “Series”) to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans for all purposes as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this AgreementSection 2.25.
(e) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 3 contracts
Sources: Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.)
Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one 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 more new term loan commitments (the date of issuance of any such increaseAlternative Incremental Facility Indebtedness, as the “case may be, exceed the Maximum Incremental Term Loan Commitments”), by an amount not Amount in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individuallyeffect on such date. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five (5) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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, (1) if such Person is not then a Lender, must be an Eligible Assignee and (2) in the case of an Incremental Revolving Credit Commitment, must be reasonably acceptable to the Administrative Agent, each Issuing Bank and the Swingline Lender (in each case, to the extent the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be, would be required to consent to an assignment to such Person in accordance with Section 9.04(b)).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, substantially identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided, that, (w) the maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date, (x) the upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Borrower and the Incremental Revolving Lenders providing such Incremental Facility, (y) all Incremental Revolving Commitments shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations and (z) no Incremental Revolving Commitments shall be secured by any property or assets of Holdings, the Borrower or any of their Subsidiaries other than the Collateral or be guaranteed by any Person other than Holdings and Subsidiaries that are Subsidiary Loan Parties. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, 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 shall be no shorter than the remaining weighted average life to maturity of the Class of existing Term Loans with the longest remaining weighted average life to maturity at such time (or, in the case of Incremental Term Loans which are Term B Loans, the weighted average life to maturity of any then-existing Class of Term B Loans with the longest remaining weighted average life to maturity at such time), (iii) except for Inside Maturity Accordion Indebtedness, any such Incremental Term Facility will mature no earlier than the Latest Maturity Date at such time (or, in the case of Incremental Term Loans which are Term B Loans, the latest maturity date then applicable to any then-existing Class of Term B Loans), (iv) the terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall not be materially more favorable, taken as a whole, to the lenders providing such Incremental Term Facility than (x) if any Term Loans then exist, the terms applicable to such existing Term Loans or (y) if no Term Loans then exist, the terms applicable to the Revolving Commitments and Revolving Loans (in each case as determined by Holdings in good faith), other than (A) (I) covenants or other provisions applicable only to periods after the Latest Maturity Date at such time and (II) covenants or other provisions that are also for the benefit of the Lenders in respect of the Loans and Commitments outstanding at the time such Incremental Term Facility is incurred and (B) to the extent required by the lenders providing such Incremental Term Facility, customary “most-favored-nation” protection, call protection, and mandatory prepayments, in each case, which may be applicable solely with respect to such Incremental Term Facility (it being understood that to the extent a mandatory prepayment is required in connection with the establishment of an Incremental Term Facility, such mandatory prepayment shall be applied ratably to all then-existing Term Loans; provided, that, a Financial Officer of Holdings shall have delivered a certificate to the Administrative Agent at least two (2) Business Days prior to the incurrence of such Incremental Term Facility (or such shorter period of time as may reasonably be agreed by the Administrative Agent), together with a summary of the material terms and conditions of such Incremental Term Facility, stating that Holdings has determined in good faith that such material terms and conditions satisfy the requirements set forth in this clause (iv), which determination shall be conclusive, (v) in the case of any Incremental Term Loans that are Term B Loans, such Incremental Term Loans that are Term B Loans may, to the extent so provided in the applicable Incremental Facility Amendment, specify whether (x) the applicable Term B Lenders shall have any voting rights in respect of the Financial Covenant (it being agreed that if any Term B Loans are incurred at a time when a Class of Term B Loans already exists, and such subsequently incurred Term B Loans shall have such voting rights, all then outstanding Term B Loans shall also have similar voting rights) and (y) any breach of the Financial Covenant would result in a Default or Event of Default for such Term B Lenders prior to an acceleration of the Revolving Commitments and/or Revolving Loans by the applicable Lenders in accordance with the terms hereof as a result of such breach (it being agreed that if any Term B Loans are incurred at a time when a Class of Term B Loans already exists, and such subsequently incurred Term B Loans shall have such a default, all then outstanding Term B Loans shall also have a similar default), (vi) all Incremental Term Facilities shall be secured by the Collateral on a pari passu basis with the other Loan CommitmentDocument Obligations and (vii) no Incremental Term Facility shall be secured by any property or assets of Holdings or any of their Subsidiaries other than the Collateral or be guaranteed by any Person other than Holdings and Subsidiaries that are Subsidiary Loan Parties. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by Holdings, the Borrower, each Incremental Lender providing such Incremental Commitments and Incremental Facilities and the Administrative Agent; provided, that, no Incremental Commitments shall become effective unless (i) subject to Section 1.05, no Event of Default shall have occurred and be continuing immediately before and after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) subject to Section 1.05, on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.18 in connection with such Incremental Commitments and the related transactions under this Section 2.23 and (iv) the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer of the Borrower to the effect set forth in clauses (i) and (ii) above, together with calculations demonstrating (A) compliance with Section 2.23(a) above (and a calculation of the “Maximum Incremental Amount” before and after giving effect to the establishment of such Incremental Commitments and the Incremental Facilities relating thereto) and (B) 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, to give effect to the provisions of this Section 2.23.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the 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 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.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.23(e).
Appears in 3 contracts
Sources: Credit Agreement (Trinet Group, Inc.), Credit Agreement (Trinet Group, Inc.), Credit Agreement (Trinet Group, Inc.)
Incremental Facilities. The Borrower Representative may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”A) at least five (5) Business Days prior to the desired effective date of such increase (the “Revolving Commitment Amount Increase”) (i) Termination Date, an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (iiB) the increase in or the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of the greater of (i) $500,000,000 200,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually10,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $200,000,000 and all such Incremental Revolving Commitments and Incremental Term Loan Commitments obtained prior to such date) and (ii) up to an additional amount of Incremental Term Loans or increases to the Incremental Revolving Commitments so long as the Secured Leverage Ratio (calculated on a pro forma basis) is no more than 3.50:1.00, in each case, with respect to any Incremental Revolving Commitments, assuming a borrowing of the maximum amount of Loans available thereunder; provided that, in either case, Incremental Revolving Commitments shall not exceed $50,000,000 in the aggregate. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day date (each each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent and (yB) the identity of each Lender, Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), ) to whom the Borrower Representative proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, allocations and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment, as applicable. Any Such Incremental Revolving Commitments or Incremental Term Loans made Loan Commitments shall become effective as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on an such Increased Amount Date before or after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of any Incremental Term Loans, each of the conditions set forth in Section 3.02 shall be designated a separate series identified satisfied or waived; (3) the U.S. Borrower shall be in compliance with the financial covenant set forth in Section 6.07 (assuming for this purpose that such financial covenant is in effect) as of the last day of the most recently ended four Fiscal Quarter period for which financial statements are available), after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the year of maturity of such Borrower Representative, the Incremental Revolving Loan Lender or Incremental Term Loans (Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Revolving Commitment Register or month the Term Loan Register, as applicable, and year if there are multiple each Incremental Revolving Loan Lender and Incremental Term Loans maturing in Loan Lender shall be subject to the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement.requirements set forth in
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Fmsa Holdings Inc), Credit and Guaranty Agreement (Fmsa Holdings Inc), Credit and Guaranty Agreement (Fmsa Holdings Inc)
Incremental Facilities. The Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”A) at least five (5) Business Days prior to the desired effective date of such increase (the “Revolving Commitment Amount Increase”) (i) Termination Date, an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (iiB) prior to the Tranche B Term Loan Maturity Date, the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 75,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $75,000,000 and all such Incremental Revolving Commitments and Incremental Term Loan Commitments obtained prior to such date), and integral multiples of $5,000,000 individuallyin excess of that amount. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day date (each 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 and (yB) the identity of each Lender, Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount amounts of such allocations; provided that Administrative Agent Barclays Bank may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, discretion and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (1) the ratio of (i) Consolidated Total Secured Debt after giving effect to such Incremental Revolving Commitment or the Incremental Term Loan Commitment, as applicable, to (ii) pro forma Consolidated Adjusted EBITDA for the latest twelve-month period for which financial statements are then available shall be less than or equal to 3.25:1.00; (2) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (3) both before and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 3.02 shall be satisfied; (4) Holdings shall be in pro forma compliance (calculated in accordance with the definition of Consolidated Adjusted EBITDA) with each of the covenants set forth in Section 6.07 as of the last day of the most recently ended Fiscal Quarter, after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, including any acquisitions consummated with the proceeds thereof or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (5) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (6) the Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (7) all other fees and expenses owing in respect of such increase to the Administrative Agent, the Collateral Agent and the Lenders will have been paid; (8) such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall share pari passu in the Guarantees and Collateral; and (9) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of any Series shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (y) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series, as applicable and (z) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or as agreed between the Borrower and the Lenders providing such Incremental Term Loans and as set forth in the Joinder Agreement, identical to the existing Term Loans. The terms and provisions of the Incremental Revolving Loans shall be identical to the Revolving Loans and such Incremental Revolving Loan will be documented solely as an increase to the Revolving Commitments, without any change in terms other than any change that is more favorable to the Revolving Lenders and applies to all loans and commitments under the Revolving Loans (it being understood that the Administrative Agent shall be empowered to, on behalf of all the Revolving Lenders, execute an amendment to the definitive documentation relating to the Revolving Loans in order to give effect to such a change more favorable to the Revolving Lenders). In any event (i) the Weighted Average Life to Maturity of all Incremental Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the existing Term Loans, (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the latest of the final maturity of the existing Term Loans, and (iii) if the initial “yield” (for purposes of this Section 2.24, the “yield” with respect to any Loan shall be calculated as the sum of the Eurodollar Loan margin on the relevant Loan plus any original issue discount or upfront fees in lieu of original issue discount (other than any arranging fees, underwriting fees and commitment fees) (based on an assumed four-year average life for the applicable credit facilities (e.g., 100 basis points in original issue discount or upfront fees equals 25 basis points of interest rate margin))) relating to the Incremental Term Loans exceeds the “rate” (which for purposes of this Section 2.24 shall be calculated as the Applicable Margin) then in effect with respect to the existing Term Loans by more than 0.25%, then the Applicable Margin relating to the existing Term Loans and the existing Revolving Loans shall be adjusted so that the yield relating to such Incremental Term Loans does not exceed the rate applicable to the existing Term Loans or the existing Revolving Loans, as applicable, by more than 0.25%, and if the lowest permissible Adjusted Eurodollar Rate is greater than 2.00% or the lowest permissible Base Rate is greater than 3.00%, for such Incremental Term Loans, the difference between such “floor” and 2.00%, in the case of Incremental Term Loans with the Adjusted Eurodollar Rate, or 3.00%, in the case of Incremental Term Loans with Base Rate, shall be used in calculating “yield” for purposes of clause (iii) above. Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the 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 Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so provided that the aggregate amount of all the Incremental Commitments are established hereunder shall not exceed (A) $50,000,000 and (B) such greater amount that will not result in excess 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 $1,000,000,000 Available Domestic Cash and Available Foreign Cash for purposes of the First Lien Secured Leverage Ratio the cash proceeds of the Borrowings under any such Incremental Revolving Facility or Incremental Term Facility, but not less than $5,000,000 individuallyexcluding the use of such proceeds) exceeding 3.75 to 1.00. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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 and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Credit Commitment or an Lender, each Issuing Bank and the Swingline Lender).
(b) The terms of any Incremental Revolving Commitments and Revolving Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that (i) the maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date, (ii) there shall be no mandatory reduction of any Incremental Revolving Commitments prior to the Revolving Maturity Date and (iii) any upfront fees applicable to any Incremental Revolving Facility and Incremental Revolving Commitments and Incremental Revolving Loans shall be as determined by the Borrower and the Incremental Revolving Lenders providing such Incremental Facility. The terms of any Incremental Term Loan Commitment. Any Facility and the Incremental Term Loans to be made on an Increased Amount Date thereunder shall be designated a separate series identified 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 (i) if the all-in yield as determined by the year Administrative Agent in accordance with customary market practice (whether in the form of maturity 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 month and similar fees or original issue discount being equated to interest based on an assumed four-year if there are multiple life to maturity) but not structuring, arrangement or similar fees paid to the arrangers for such Indebtedness) relating to any Incremental Term Loans maturing 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 yearmanner 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%, (eachii) 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 Loans shall be no shorter than the remaining weighted average life to maturity of the Terms Loans and (iv) no Incremental Term Loan Maturity Date shall be earlier than the Term Maturity Date. Any Incremental Term Facilities 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. Notwithstanding anything to the contrary herein, each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pan passu basis with the other Loan Document Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by 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) 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 (provided that this clause (i) shall not apply to the extent agreed by the Incremental Lenders if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition), (ii) 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, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the 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 Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e).
(h) This Section 2.21 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 2 contracts
Sources: Credit Agreement (SVMK Inc.), Credit Agreement (SVMK Inc.)
Incremental Facilities. The Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 600,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 1,200,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement.
Appears in 2 contracts
Sources: Credit Agreement (LTC Properties Inc), Credit Agreement (LTC Properties Inc)
Incremental Facilities. (a) The Borrower Company may requeston one or more occasions after the Closing Date, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in Agent, request the form attached hereto as Exhibit G or in such other form acceptable establishment of Incremental Commitments; provided that the aggregate amount of the Incremental Commitments incurred under this Section 2.22 on any date shall not exceed the sum of (x) an amount equal to the Administrative Agent 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 “Commitment Amount Increase Request”single transaction by first calculating the incurrence under clause (y) at least 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 Commitments or Incremental Revolving Commitments, (B) 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 prior (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the desired effective date of such increase Administrative Agent and (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (iiC) the establishment amount of one or more new term loan commitments the Incremental Commitments being requested (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so it being agreed that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments or Incremental Term Loan 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 Incremental Revolving Credit Commitment 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 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 Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) except in the case of an Incremental Term Loan CommitmentFacility effected as an increase to an existing Class of Term Loans, 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, (iii) no Incremental Term Maturity Date shall be earlier than the Term Maturity Date and (iv) any Incremental Term Facility, for purposes of prepayments (either mandatory or optional), shall be treated substantially the 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 on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, 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 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 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 Commitments and the Administrative Agent; provided that 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 to such Incremental Commitments (and assuming that the 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 applicable acquisition or investment documentation and no Event of Default under clause (a), (b), (h) or (i) of Article VII shall have occurred and is continuing on the effective date of such Incremental Acquisition Term Facility, in each case determined after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on the applicable date), (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Acquisition Term Facility if agreed by all applicable Incremental Term Lenders, the Specified Representations and the Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such representations and warranties qualified as to materiality or Material Adverse Effect, 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 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 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 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.
(f) On the date of effectiveness of any Incremental Revolving Commitments, each Revolving Lender of the applicable Class shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the applicable Class of Revolving Loans and, in the case of the Dollar Tranche Revolving Commitments, participations in Letters of Credit and Swingline Loans outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and, if applicable, participations in Letters of Credit and Swingline Loans will be held by all of the Revolving Lenders of the applicable Class (including such Incremental Revolving Lenders) ratably in accordance with their Revolving Percentages after giving effect to the effectiveness of such Incremental Revolving Commitments. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.22(a) and of the effectiveness of any Incremental Commitments in each case advising the Lenders of the details thereof.
(h) If an Incremental Term Loan borrowed by a Borrower (other than a Foreign Obligor) hereunder would otherwise constitute an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code, before the close of each accrual period ending after the fifth anniversary of the issue date of such Loan, the applicable Borrower shall make such payments on the Incremental Term Loan as required to prevent the Incremental Term Loan from being treated as an “applicable high yield discount obligation”.
Appears in 2 contracts
Sources: Credit Agreement (Abm Industries Inc /De/), Credit Agreement (Abm Industries Inc /De/)
Incremental Facilities. (a) The Parent Borrower on behalf of the Borrowers may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent elect to request the establishment of one or more increases in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing New Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an aggregate amount not in excess of (when taken together with the aggregate amount (the “Excess Amount”) of New Loan Commitments (as defined in the CF Agreement as in effect on the Original Closing Date) under the CF Facility on the date such Incremental Revolving Credit Commitments become effective) $500,000,000 1,500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between $1,500,000,000 and all such Incremental Revolving Credit Commitments (when taken together with the Excess Amount on the date such Incremental Revolving Credit Commitments become effective) obtained on or prior to such date). Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Parent Borrower on behalf of the Borrowers proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) which shall be a date not less than ten Business Days after the identity of each Lender, date on which such notice is delivered to the Administrative Agent. The Parent Borrower may approach any Lender or any other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” other than a natural person) to provide all or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any a portion of such the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender offered or approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an a 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) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Credit Commitments, as applicable; (ii) both before and after giving effect to the making of any Incremental Revolving Loans, each of the conditions set forth in Section 7 shall be satisfied; (iii) the Parent Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenant set forth in Section 10.9 of the CF Agreement as of the last day of the most recently ended fiscal quarter after giving effect to such Incremental Revolving Credit 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.
(b) On any Increased Amount Date on which Incremental Revolving Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with New Revolving Credit Commitments shall assign to each Lender with a Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “SeriesIncremental Revolving Loan Lender”) and each of the Incremental Term 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, to effect the provision of this AgreementSection 2.14.
Appears in 2 contracts
Sources: Credit Agreement (Hca Inc/Tn), Credit Agreement (Hca Inc/Tn)
Incremental Facilities. (a) The Borrower Company may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in ; provided that (A) the aggregate so that amount of all the aggregate Incremental Commitments are established hereunder shall not in excess exceed US$600,000,000 and (B) no Incremental Commitments may be established until after the earlier of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day Delayed Draw Term Funding Date and (each an “Increased Amount y) the Delayed Draw Term Commitment Termination Date”. Each such notice shall specify (1) the date on which the Borrower Company proposes that the Incremental Revolving Credit 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (y2) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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 Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Credit Lender, each Issuing Bank and the Swingline Lender, in each case not to be unreasonably withheld, delayed or conditioned and solely to the extent the consent of the Administrative Agent, the Issuing Banks or the Swingline Lender, as the case may be, would be required for an assignment to such Person pursuant to Section 10.04).
(b) The terms and conditions of any Incremental Revolving Commitment or an Incremental Term Loan Commitmentand the 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. Any The terms and conditions of any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified 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 year Subsidiary Guarantors, (ii) the Incremental Term Loans shall rank pari passu in right of payment with the other Loans and the other Loan Document Obligations and shall not be secured by any Liens on any assets of the Company or its Subsidiaries, unless the Loan Document Obligations are equally and ratably secured pursuant to security documentation reasonably satisfactory to the Administrative Agent, (iii) the Incremental Facility Agreement with respect thereto shall not contain any affirmative, negative or financial covenant applicable to the 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 (or month and year if there are multiple C) such Incremental Term Loans maturing in the same year) (each, a “Series”) of shall not be subject to any mandatory prepayment provisions. Any Incremental Term Commitments established pursuant to a 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) 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 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 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 Revolving Lender that shall have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments shall pay to the Administrative Agent in same day funds and in the applicable currency an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each Resulting Revolving Borrowing (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each corresponding Existing Revolving Borrowing, (iii) each Incremental Revolving Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments shall pay to Administrative Agent in same day funds and in the applicable currency an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each Resulting Revolving Borrowing, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Revolving Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each Existing Revolving Borrowing, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the amount of each corresponding Resulting Revolving Borrowing, (v) after the effectiveness of such Incremental Revolving Commitments, the applicable Borrowers shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in amounts and currencies equal to the amount and currencies of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section 2.03 (and the Company shall, on behalf of all applicable Borrowers, deliver such Borrowing Request), (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) and (vii) the applicable Borrowers shall pay each Revolving Lender any and all accrued but unpaid interest on its Revolving Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Borrowers pursuant to the provisions of Section 2.13 if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any 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 effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto.
Appears in 2 contracts
Sources: Credit Agreement (Westinghouse Air Brake Technologies Corp), Credit Agreement (Westinghouse Air Brake Technologies Corp)
Incremental Facilities. The Borrower On one or more occasions at any time after the Closing Date, the Borrowers may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (iA) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (iiB) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”, together with the Incremental Revolving Commitments, the “Incremental Commitments”), by in an aggregate amount not in excess of to exceed $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually750,000,000. Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Borrower proposes that Revolving Borrowers or the Incremental Revolving Credit Commitments or Incremental Term Loan CommitmentsBorrowers, as applicable, propose that such Incremental Commitments shall be effective, and 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 identity of each LenderIncremental 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 an “Incremental Term Loan Lender”, ,” as applicable), ) to whom the Borrower proposes any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Revolving Credit Commitments 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 Commitments, as applicable, be allocated Lender is an existing Lender. The terms and the amount provisions of such allocations; provided that Administrative Agent may elect or decline to arrange such any Incremental Revolving Credit Commitments or shall be identical to the existing Revolving Commitments. The terms and provisions of any Incremental Term Loan Commitments in its sole discretion, and any Lender approached to Incremental Term Loans shall (a) provide all or a portion that the maturity date of the Incremental Revolving Credit Commitments or any Incremental Term Loan Commitments may elect or declinethat 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 its sole discretionany prepayments of the existing Term Loan Facility, to provide an Incremental Revolving Credit Commitment or an unless the Term Loan Borrowers and the Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity Lenders in respect of such Incremental Term Loans elect lesser payments and (c) otherwise be identical to the existing Term Loans. The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall exist and (ii) as of the last day of the most recent month for which financial statements have been delivered pursuant to Section 5.01, the Borrowers would have been in compliance with the Financial Covenants (after giving effect to any increase to the maximum Total Leverage Ratio pursuant to Section 6.06(a) during a Total Leverage Ratio Increase Period, if applicable) that are applicable at such time; (y) the representations and year warranties made or deemed made by the Borrowers in any Loan Document shall be true and correct in all material respects on the effective date of such Incremental Commitments except to the extent that such representations and warranties expressly relate solely to an earlier date (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 Loan Documents; and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if there 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; 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 multiple 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 Loan Lender shall make a Loan to the applicable Term 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 Incremental Term Loan Commitment and the Incremental Term Loans maturing 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 thereof (y) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable, and (z) in the same year) (eachcase of each notice to any Revolving Loan Lender, a “Series”) of 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 Loans for all purposes Loan Lenders shall be determined by the Revolving Borrowers or the Term Loan Borrowers, as applicable, and the applicable Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders. The Incremental Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Revolving Borrowers or the Term Loan Borrowers, as applicable, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of 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 AgreementSection 2.04.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement, Revolving Credit and Term Loan Agreement (Cooper Companies Inc)
Incremental Facilities. The Borrower may request, from time to timetime after the Closing Date, establish one or more tranches of term loans or increase an outstanding tranche of term loans (each an “Incremental Term Facility”), and/or increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving 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, 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:
(i) the principal amount of such 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 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.
(ii) no Default shall have occurred and be continuing, and no Default would exist after giving effect to any Business Day prior Incremental Facility, both on the date on which such Incremental Facility 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 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) the borrower and guarantors for each Incremental Facility shall be the same as for the Revolving Credit Facility, each Incremental Facility shall be secured by Liens in the Collateral that are parity with the Liens in the Collateral securing the Obligations and each Incremental Facility shall rank pari passu in right of payment with the Obligations;
(vi) each Incremental Facility shall be effective only upon receipt by the Administrative Agent of (A) additional commitments in respect of such requested Incremental Facility (each an “Incremental Facility Commitment”) from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees and (B) 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 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 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 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 is sixty (60are qualified by materiality or Material Adverse Effect, in all respects as drafted) days prior on and as of the date of such Incremental Facility, except to the Stated 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 Revolving Increase, that the entire amount of such Incremental Revolving Increase is funded and (2) excluding the proceeds of such Incremental Facility from the cash netting in Consolidated Net Indebtedness for purposes of calculation of the Consolidated Senior Secured Leverage Ratio and the Consolidated Total Leverage Ratio) the Borrower is in compliance with the financial covenants in Section 7.11 on a Pro Forma Basis;
(C) such amendments to the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental 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 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 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 Termination 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:
(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 written notice 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 the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent its discretion;
(a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (iiD) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity proceeds of such Incremental Term Loans Facility shall be used for the purposes described in the definitive documentation for such Incremental Term Facility; and
(E) each Incremental Term Facility shall share ratably in any prepayments of other Incremental Term Facilities pursuant to Section 2.05 (or month and year if there are multiple otherwise provide for more favorable prepayment treatment for the then outstanding other Incremental Term Loans maturing in the same yearFacilities) (each, a “Series”) of and shall have ratable voting rights with other Incremental Term Loans Facilities (or otherwise provide for all purposes of this Agreementmore favorable voting rights for the then outstanding other Incremental Term Facilities).
Appears in 2 contracts
Sources: Credit Agreement (5.11 Abr Corp.), Credit Agreement (Compass Group Diversified Holdings LLC)
Incremental Facilities. (a) The Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”A) at least five (5) Business Days prior to the desired effective date of such increase (the “Revolving Commitment Amount Increase”) (i) Termination Date, an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (iiB) prior to the Tranche BRestatement Effective Date Term Loan Maturity Date, the establishment of one or more new term loan commitments (any such increase, the “Incremental Term 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) $500,000,000 100,000,000 in the aggregate so that minus the aggregate Commitments are not in excess amount of $1,000,000,000 Indebtedness incurred pursuant to Section 2.24(a)(B)(i) (or any similar incremental “free and not less than $5,000,000 individually. Each clear” basket) of the Second Lien Credit Agreement and (ii) an unlimited amount so long as such Commitment Amount Increase Request shall identify 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 Business Day Incremental Revolving Commitments are fully drawn and (each y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Indebtedness for purposes of calculating such First Lien Leverage Ratio); provided that no such Incremental Revolving Commitments or Incremental Term Loan Commitments shall be in an aggregate amount less than $25,000,000 (except as shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $100,000,000 and all such Incremental Revolving Commitments and Incremental Term Loan Commitments obtained prior to such date pursuant to clause (i) above), and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving 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 and (yB) the identity of each Lender, Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount amounts of such allocations; provided that Administrative Agent Barclays may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, discretion and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (1) subject to the terms and conditions set forth in Section 1.04 with respect to Limited Condition Acquisitions, no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (2) Facilities; (2) subject to the terms and conditions set forth in Section 1.04 with respect to Limited Condition Acquisitions, both before and after giving effect to the making of any Series of Incremental Term Loans, each of the conditions set forth in Section 3.02 shall be satisfied; (3) subject to the terms and conditions set forth in Section 1.04 with respect to Limited Condition Acquisitions, Holdings shall be in pro forma compliance (calculated in accordance with the definition of Consolidated Adjusted EBITDA) with each of the covenants set forth in Section 6.07 as of the last day of the most recently ended Fiscal Quarter, after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, including any acquisitions consummated with the proceeds thereof or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (6) all other fees and expenses owing in respect of such increase to the Administrative Agent, the Collateral Agent and the Lenders will have been paid; (7) such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall share pari passu in the Guarantees and Collateral; and (8) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Loan Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
(c) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of any Series shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (yx) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series, as applicable and (zy) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section.
(e) The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or as agreed between the Borrower and the Lenders providing such Incremental Term Loans and as set forth in the Joinder Agreement, identical to the existing Term Loans. The terms and provisions of the Incremental Revolving Loans shall be identical to the Revolving Loans and such Incremental Revolving Loans will be documented solely as an increase to the Revolving Commitments, without any change in terms other than any change that is more favorable to the Revolving Lenders and applies to all loans and commitments under the Revolving Loans (it being understood that the Administrative Agent shall be empowered to, on behalf of all the Revolving Lenders, execute an amendment to the definitive documentation relating to the Revolving Loans in order to give effect to such a change more favorable to the Revolving Lenders). In any event (i) the 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 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 other Lenders, effect such amendments to this Agreement 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 Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to one or more increases in the then existing amount of the Revolving Credit Commitments of any Class (any each such increase, the an “Incremental Revolving Credit CommitmentsCommitment Increase”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in provided that (A) the aggregate so that amount of all the Incremental Revolving Commitment Increases established hereunder shall not exceed $25,000,000 and (B) the aggregate amount of all the Incremental Term Commitments are and all Incremental Revolving Commitment Increases established hereunder shall not in excess exceed the difference between (1) $100,000,000 and (2) the aggregate principal amount of $1,000,000,000 and not less than $5,000,000 individuallyPermitted Secured Indebtedness incurred after the Effective Date. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit Commitments Commitment Increases 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments Commitment Increase or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment Increase or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide an such Incremental Revolving Credit Commitment Increase or Incremental Term Commitments, (y) the Borrower shall not be required to approach existing Lenders first to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment or offer any existing Lenders a right of first refusal to provide any Incremental Revolving Commitment Increase or Incremental Term Commitment and (z) any Person that the 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 Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Commitment Increase, each Issuing Bank and the Swingline Lender).
(b) The terms and conditions of any Loans and Commitments pursuant to any Incremental Revolving Commitment Increase shall be the 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 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 CommitmentMaturity 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 Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) The Incremental Term Commitments and any Incremental Revolving Commitment Increase shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the 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, 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 Agreement applicable to such Incremental Revolving Commitment Increase, (B) if the applicable Lender already has a Revolving Commitment, the Revolving Commitment of such Lender shall be increased as provided in the Incremental Facility Agreement applicable to such Incremental Revolving Commitment Increase and (C) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment Increase, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment Increase, the Revolving Exposure of the Revolving Lender making such Incremental Revolving Commitment Increase, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitment Increase, each Revolving Lender shall assign to each Revolving Lender making such Incremental Revolving Commitment Increase, and each such Revolving Lender making such Incremental Revolving Commitment Increase shall purchase from each Revolving Lender, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment Increase.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Term Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitment Increase, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e).
Appears in 2 contracts
Sources: Credit Agreement (Costar Group Inc), Credit Agreement (Costar Group Inc)
Incremental Facilities. The Borrower may request, from time (a) After the Second Amendment Effective Date and before the Extended Term Loan Maturity Date (with respect to time, on any Business Day prior to the date that is sixty (60Term Loans) days prior to the Stated and Extended Revolving Credit Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, may request (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new additional tranches of term loan loans (the commitments (any such increasethereto, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 ) and/or (ii) increases in the aggregate so Revolving Commitments (the “Incremental Revolving Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that the aggregate Commitments are not in excess of $1,000,000,000 and (i) each such request shall be for not less than $5,000,000 individually25,000,000 (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 and Revolving Commitments shall not exceed $1,500,000,000. Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Loan Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) which shall be a date not less than 10 Business Days after the identity of each Lender, or other Person that date on which such notice is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), delivered to whom the Administrative Agent. The Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and approach any Lender approached or any Person to provide all or a portion of the Incremental Revolving Credit 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, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to the Administrative Agent (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) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loan Commitments, (ii) the Borrower shall be in compliance with Section 7.1 as of the most recently ended fiscal quarter after giving effect to such Incremental Loan Commitments, (iii) the weighted average life to maturity of any Incremental Term Loan Commitments may elect shall be greater than or declineequal to the then-remaining weighted average life to maturity of the Extended Term Loans, (iv) the interest rate margin in its sole discretion, to provide an respect of any Incremental Revolving Credit Commitment Loans that is in effect on the Increased Amount Date (giving effect to original issue discount (“OID”) or an upfront fees, (which shall be deemed to constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) paid to all of the Incremental Revolving Lenders in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to Extended Revolving Commitments that is in effect on the Increased Amount Date, and (y) the upfront fees paid to all of the Lenders in respect of their Extended Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to Extended Revolving Commitments shall be increased so that the interest rate margin in respect of such Incremental Revolving Loan that is in effect on the Increased Amount Date (giving effect to any OID issued or upfront fees paid to all of the Incremental Lenders in connection therewith) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to Extended Revolving Commitments that is in effect on the Increased Amount Date and (y) the upfront fees paid to all of the Lenders in respect of their Extended Revolving Commitments, (v) unless the final maturity date of such Incremental 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 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 Commitment(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 series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) tranche of Incremental Term Loans for all purposes of this Agreement.
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to the Revolving Loans and the Revolving Commitments.
(d) 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, to effect the provisions of this Section 2.23.
Appears in 2 contracts
Sources: Credit Agreement (Avis Budget Group, Inc.), Credit Agreement (Avis Budget Group, Inc.)
Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in Agent, request the form attached hereto as Exhibit G or in establishment of Incremental Commitments, provided that the amount of any Incremental Commitments established hereunder shall not exceed the amount of additional Indebtedness permitted at the time such other form acceptable Incremental Commitments are established to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of be Incurred under Section 9.01(b)(1). Each such increase (the “Commitment Amount Increase”) notice shall specify (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) 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 (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 (yii) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided the Incremental Commitments being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (A) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment and (B) any Person that the Borrower proposes to become an Incremental Revolving Credit Commitment 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 an in the applicable Incremental Term Facility Agreement, 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 Average Life of any Incremental Loans shall be no shorter than the remaining Average Life of the Loans and (iii) the Maturity Date for any Incremental Loan Commitmentshall not be earlier than the Final Maturity Date in effect on the date such Incremental Loan is made. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) Class of Incremental Term Commitments and Incremental Loans for all purposes of this Agreement.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that 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 to such Incremental Commitments and the making of Loans thereunder, (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 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, 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, a Lender (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of a Lender (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
(e) 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 2.08(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Quicksilver Resources Inc), Second Lien Credit Agreement (Quicksilver Resources Inc)
Incremental Facilities. (a) The Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in elect to increase the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments of any Class (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of incur one or more new term loan commitments and/or increase the commitments of any Class of Term Loans (any such increase, the “Incremental Term Loan Commitments”), ) by an amount (1) not in excess of $500,000,000 to exceed in the aggregate so that aggregate, at the aggregate Commitments are not time of incurrence, the Incremental Available Amount referred to in excess clauses (a), (b) and (c)(i) of $1,000,000,000 the definition thereof and (2) not less than than, individually, $5,000,000 individually. 25,000,000.
(b) Each such Commitment Amount Increase Request notice shall identify specify (xi) the Business Day date (each 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 (yii) the identity of each Lender, Lender or other Person that is Person, which must be an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, ,” as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any . Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans 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 series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) Class of Incremental Term Loans Loan Commitments for all purposes of this Agreement. Notwithstanding the foregoing, any Incremental Term Loans may be treated as part of the same Class as any other Incremental Term Loans if such Incremental Term Loans have identical terms (other than effective yield) and are fungible for United States federal income tax purposes with such other Incremental Term Loans.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the Incremental Revolving Credit Commitments and the Incremental Revolving Loan Lenders or Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable and (ii) in the case of each notice to any applicable Revolving Credit Lender of any such given Class, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans of such Class, in each case subject to the assignments contemplated by this Section.
(d) Such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that:
(i) (x) subject, solely in the case of Incremental Term Loans, to Section 1.09(c), no Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable and the extensions of credit to be made thereunder on such date; 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) the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Revolving Loan Lender(s) or Incremental Term Loan Lender(s), as applicable, and the Administrative Agent, each of which shall be recorded in the Register (and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 3.01);
(iii) the Incremental Facilities shall be Guaranteed by the Guarantors, rank pari passu in right of security with the other Facilities and shall not be secured by any property or assets other than the Collateral;
(iv) all fees and reasonable out-of-pocket expenses owing to the Administrative Agent and the Lenders (other than a Defaulting Lender) in respect of the Incremental Revolving Credit Commitments and Incremental Term Loan Commitments shall have been paid; and
(v) the Borrower shall deliver or cause to be delivered legal opinions, officer’s certificates and such other documents reasonably requested by the Administrative Agent in connection with any such transaction.
(e) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Credit Lenders of the Class being so increased shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the existing Revolving Credit Lenders of the Class being so increased, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans of the Class being so increased and participations in Letters of Credit and Swing Line Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans and participations in Letters of Credit and Swing Line Loans will be held by existing Revolving Credit Lenders of such Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of the Class being so increased after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments of such Class, (ii) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment of the Class being so increased and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan of the Class being so increased and (iii) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Credit Commitment and all matters relating thereto.
(f) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Class (or any Incremental Term Loan Commitments increasing any existing Term Loans) are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Class or increase shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class or increase and (ii) each Incremental Term Loan Lender of such Class or increase shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class or increase and the Incremental Term Loans of such Class or increase made pursuant thereto.
(g) The terms (including pricing, “most favored nations” provisions, premiums, fees, rate floors, optional prepayment provisions, and/or mandatory prepayment provisions relating to excess cash flow, asset sale proceeds and condemnation proceeds) and conditions of the Incremental Term Loans and Incremental Term Loan Commitments shall be, except as otherwise explicitly set forth herein, as agreed in the Joinder Agreement between the Borrower, the applicable Incremental Term Loan Lenders providing such Incremental Term Loan Commitments and the Administrative Agent; provided that (i) the terms of such Indebtedness shall not be more restrictive, taken as a whole, to the Borrower and the other Loan Parties than those set forth in this Agreement prior to the execution of such Joinder Agreement unless (x) such terms apply only after the Latest Maturity Date at the time such Indebtedness is established or (y) this Agreement is amended so that such terms are also applicable for the benefit of any Lenders under any then-existing Facilities, (ii) the Weighted Average Life to Maturity of all Incremental Term Loans of any such Class shall be no shorter than (x) if there are no Term Loans outstanding at such time, 36 months and (y) if there are Term Loans outstanding at such time, the Weighted Average Life to Maturity of any other Term Loans at the time of the incurrence of such Incremental Term Loans, (iii) the applicable Incremental Term Loan Maturity Date of 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 (v) in the case of Incremental Term Loans, such Indebtedness may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory prepayments of Term Loans hereunder, as specified in the applicable Joinder Agreement, and in the case of Incremental Revolving Credit Commitments, such Incremental Revolving Credit Commitments may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any mandatory reductions of Revolving Credit Commitments hereunder, as specified in the applicable Joinder Agreement.
(h) The terms and provisions of the Incremental Revolving Loans and Incremental Revolving Credit 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, 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 scheduled installment payments to the extent such amendment does not decrease the installment payment an existing Term Lender would have received prior to giving effect to any such amendment).
(j) This Section 2.14 shall supersede any provisions in Section 2.13 or Section 10.01 to the contrary.
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 one or more Lenders (including New Lenders) may request, from time to timetime agree that such Lenders shall make, on obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any Business Day prior to the date that is sixty (60) days prior to the Stated such increased Revolving Credit Termination Date 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 written notice executing and delivering to the Administrative Agent in an Additional Credit Extension Amendment specifying (i) the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date amount of such increase (and the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increaseFacility or Facilities involved, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”)Loans, by an amount not in excess of $500,000,000 in (w) the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify applicable Incremental Term Maturity Date, (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or amortization schedule for such Incremental Term Loan Commitments, as applicable, shall be effective, Loans and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Applicable Margin for such Incremental Term Loan Lender”Loans; provided, as that:
(A) the aggregate principal amount (or committed amount, if 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 amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date and Incremental Revolving Commitments, together with the aggregate principal amount of any Permitted Incremental Equivalent Debt, shall be designated a separate series identified by not exceed the year of maturity of such 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 (or month y) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to and year if there are multiple after giving effect to any Additional Credit Extension Amendment (including the making of any Incremental Term Loans maturing in the same year) (eachor Incremental Revolving Commitments pursuant thereto), a “Series”) no Default or Event of Incremental Term Loans for all purposes of this Agreement.Default has occurred and is continuing or shall result therefrom;
Appears in 2 contracts
Sources: Amendment No. 4 (Somnigroup International Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Incremental Facilities. (a) The Borrower Representative may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent elect to request the establishment of one or more increases in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent Commitments of any Class (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an aggregate amount not in excess of $500,000,000 in the aggregate so that Maximum Incremental Facilities Amount at the aggregate Commitments are not in excess time of $1,000,000,000 incurrence thereof and not less than $5,000,000 individuallyindividually (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 Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and . The Borrower Representative may approach any Lender or any Person (yother than a natural Person) the identity of each Lender, to provide all or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any a portion of such the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender offered or approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Commitment, and the Borrower Representative shall have no obligation to approach any existing Lender to provide any Incremental Term Loan Revolving Credit Commitment. Any 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 Term Loans 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 immediately succeeding clause (y), no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such Incremental Revolving Credit Commitments or (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 Incremental Revolving 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 Borrowers shall make any payments required pursuant to Section 2.11 in connection with the Incremental Revolving Credit Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). For all purposes of this Agreement, any Incremental Revolving Credit Commitments made on an Increased Amount Date shall be designated a separate part of the series identified of existing Commitments of the applicable Class subject to such increase.
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each loan made (including, where applicable, a loan made by way of Banker’s Acceptances or BA Equivalent Notes) under an Incremental Revolving Credit Commitment (an “Incremental Revolving Credit Loan”) shall be deemed, for all purposes, a Loan and (ii) each Lender with an Incremental Revolving Credit Commitment (each an “Incremental Revolving Loan Lender”) shall become a Lender with respect to the year Incremental Revolving Credit Commitment and all matters relating thereto; provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Incremental Revolving Loan Lender’s providing such Incremental Revolving Credit Commitment to the extent such consent, if any, would be required under Section 14.6(b) for an assignment of maturity Incremental Revolving Credit Loans or Incremental Revolving Credit Commitments, as applicable, to such Incremental Revolving Loan Lender.
(c) On any Increased Amount Date, each Lender in respect of the applicable Class of Commitments immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Loan Lender in respect of such increase, and each such Incremental Revolving Loan Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit, so that after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in such Letters of Credit held by each Lender holding Revolving Loans (including each such Incremental Revolving Loan Lender), as applicable, will equal the percentage of the aggregate Total Revolving Credit Commitments of all Lenders under the Credit Facilities. In connection with any Incremental Revolving Credit Commitment hereunder, upon the request of the Borrower Representative, the Letter of Credit Commitment may be increased with the approval of the Letter of Credit Issuer and the Administrative Agent by an amount not to exceed the amount of such Incremental Term 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.
(d) Incremental Revolving Credit Commitments and Incremental Revolving Credit Loans shall be identical to the Class of Commitments subject to such increase and the related Revolving Loans of such Class; provided, that underwriting, arrangement, upfront or month similar fees that may be agreed to among the Borrower Representative and year if there are multiple the Lenders providing and/or arranging such Incremental Term Loans maturing Revolving Credit Commitments may be paid in connection with such Incremental Revolving Credit Commitments.
(e) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the same year) (eachopinion of the Administrative Agent and the Borrower Representative, a “Series”) of Incremental Term Loans for all purposes to effect the provisions of this AgreementSection 2.14.
Appears in 2 contracts
Sources: Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.)
Incremental Facilities. (a) The Borrower may requeston one or more occasions after the Closing Date, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request:
(i) an increase to the then existing in any Revolving Credit Commitments (any such increaseeach, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Credit Commitments”) and/or ),
(ii) the establishment of one or more new term loan commitments of the same Class as any outstanding Term Loan (any such increaseeach, a “Term Loan Increase”), or
(iii) the addition of one or more new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving Commitments, the “Incremental Commitments”; the loans made pursuant to such commitments, “Incremental Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan CommitmentsIncreases, the “Incremental Facilities”), by an amount not in excess of $500,000,000 in the aggregate so ; provided that the aggregate amount of all the Incremental Commitments are at any time shall not in excess exceed the Permitted Incremental Amount applicable to the Incremental Commitments at such time less the aggregate amount of $1,000,000,000 and not less than $5,000,000 individuallyIncremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”. Each such Commitment Amount Increase Request notice shall identify specify (xi) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yii) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided the Incremental Commitments being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental Revolving Credit Commitment Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent).
(b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event,
(i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date of such calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B Term Loans shall automatically be increased to a level such that the Weighted Average Yield with respect to the Tranche B Term Loans is 0.50% per annum below the Weighted Average Yield with respect to such Incremental Loans (other than a shorter Weighted Average Yield for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing that does not provide for a Weighted Average Yield that is shorter than the then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, as applicable, include a Term SOFR or Alternate Base Rate floor that is greater than the Term SOFR or Alternate Base Rate floor applicable to any existing Class of Term Loans, such differential between interest rate floors shall be included in the calculation of Weighted Average Yield for purposes of this clause (i), but only to the extent an increase in the Term SOFR or Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Term SOFR or Alternate Base Rate floors (but not the applicable rate) applicable to the existing Term Loans shall be increased to the extent of such differential between interest rate floors;
(ii) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans);
(iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date);
(iv) (x) subject to clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to any Incremental Facility shall be determined by the Borrower and the Incremental Lenders and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any material respect, shall be reasonably satisfactory to the Administrative Agent (except for covenants and terms that apply solely to any period after the latest Maturity Date that is in effect on the effective date of such Incremental Facility Agreement) (it being understood that to the extent any financial maintenance covenant is added for the benefit of any Incremental Term Loans or any Incremental Term Commitments, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is also added for the benefit of any Tranche B Term Loans remaining outstanding after the effectiveness of such Incremental Facility Agreement);
(v) any Incremental Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of the Term Loans, as specified in the applicable Incremental Facility Agreement;
(vi) any Incremental Commitments and Incremental Loans shall, as elected by the Borrower, be equal or junior in right of payment with any remaining portion of the Facilities and, with respect to security with any remaining portion of the Facilities, pari passu, junior or unsecured and shall not be secured by any assets other than the Collateral securing the Facilities or guaranteed by any Person that does not guarantee the Facilities (provided that any such Incremental Commitments or Incremental Loans that are pari passu with or junior to the Facilities with respect to security shall be subject to the Pari Passu Intercreditor Agreement and/or the Junior Lien Intercreditor Agreement, as applicable);
(vii) the proceeds of any Incremental Facility shall be used for general corporate purposes, including to finance growth Capital Expenditures, to make Permitted Acquisitions and the related transactions and payment of fees and expenses with respect thereto, to make Restricted Payments and to refinance existing Indebtedness to the extent permitted hereunder, or for any other purpose not prohibited by this Agreement; and
(viii) the Incremental Revolving Commitments and Incremental Revolving Loans shall be identical to the Revolving Commitments and the Revolving Loans, other than as to their Maturity Date and as set forth in this Section 2.21 (Incremental Facilities); provided that, notwithstanding anything to the contrary in this Section 2.21 (Incremental Facilities) or otherwise:
(A) any such Incremental Revolving Commitments or Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans;
(B) any such Incremental Revolving Commitments or Incremental Revolving Loans shall not mature earlier than the latest Maturity Date of any Revolving Loans outstanding at the time of incurrence of such Incremental Revolving Commitments;
(C) the borrowing and repayment (except for (1) payments of interest and fees at different rates on Incremental Revolving Commitments (and related outstandings), (2) repayments required upon the maturity date of the Incremental Revolving Commitments and (3) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (D) below)) of Loans with respect to Incremental Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments on the Incremental Facility Closing Date; and
(D) the permanent repayment of Revolving Loans with respect to, and termination of, Incremental Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Parent, the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) except as otherwise agreed by the Lenders providing the relevant Incremental Facility in connection with any Limited Condition Acquisition (which shall be governed by clause (d) below), no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments and the making of Incremental Loans thereunder to be made on such date, (ii) except as otherwise agreed by the Lenders providing the relevant Incremental Facility in connection with any Limited Condition Acquisition (which shall be governed by clause (d) below), on the date of effectiveness thereof, the representations and warranties set forth in Article III and in the other Loan CommitmentDocuments shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case, on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects as of such prior date, (iii) after giving effect to such Incremental Commitments and the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants) with respect to the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction.
(d) Notwithstanding the foregoing provisions of this Section 2.21 (Incremental Facilities) or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following: (i) (x) on the date of execution of the definitive documentation with respect to such Limited Condition Acquisition, all the requirements set forth in clause (c)(i) and (ii) above shall be satisfied and (y) on the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Loans, (A) no Event of Default under Section 7.01(b), (c), (g) or (h) (Events of Default), shall have occurred and be continuing and (B) the only representations and warranties the accuracy of which shall be a condition to funding such Incremental Loans shall be the Specified Representations (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and warranties set forth in Article III on the date of such closing and funding of such Limited Condition Acquisition, it being understood and agreed that only the representations and warranties set forth in clause (B) shall be conditions to funding of such Incremental Loans on such closing date; (ii) after giving effect to such Incremental Commitments and the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in compliance with the Financial Covenants set forth in Section 6.12 (Financial Covenants) with respect to the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction.
(e) Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section, including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation, amendments to the Mortgages and datedown endorsements to the title policies) and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary to enable any Incremental Loans to be fungible for United States federal income tax purposes with an existing Class of Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder.
(f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, each a “Series”) of Incremental Term Commitments and Incremental Loans for all purposes of this Agreement.
(g) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility Agreement.
(h) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) (Incrementa
Appears in 2 contracts
Sources: Credit Agreement (TransMontaigne Partners LLC), Credit Agreement (TransMontaigne Partners LLC)
Incremental Facilities. The (a) On one or more occasions at any time on or after the Effective Date, the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to request (A) an increase to the Administrative Agent existing aggregate Revolving Commitments (each such increase, a “Commitment Amount Increase RequestRevolving 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 facility or commitment increase, individually, an “Incremental Facility”) such that the aggregate amount of the Facilities, together with all such Incremental Facilities, does not exceed at least 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 prior (or such lesser number of days as the Administrative Agent shall agree) after the date on which such notice is delivered to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increaseAdministrative Agent. The Administrative Agent, the “Syndication Agent and/or their respective Affiliates shall use commercially reasonable efforts, with the assistance of the Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the requested Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so Facility; provided that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments Facility may elect or decline, in its sole discretion, to provide participate in an Incremental Facility, and (y) any Lender or other Person that is an Eligible Assignee to whom any portion of such Incremental Facility shall be allocated (each, an “Incremental Revolving Credit Commitment Lender” or an “Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date Lender”, as applicable) shall be designated a separate series identified by subject to the year approval of maturity of the Borrower and the Administrative Agent (such Incremental Term Loans (approval not to be unreasonably withheld or month and year if there are multiple Incremental Term Loans maturing delayed), and, in the same year) case of a Revolving Facility Increase, each Issuing Bank (eachwhich approvals shall not be unreasonably withheld), a “Series”) of Incremental Term Loans for all purposes of this Agreementto the extent required by Section 9.04(b).
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 one or more Lenders (including New Lenders) may request, from time to timetime agree that such Lenders shall make, on obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any Business Day prior to the date that is sixty (60) days prior to the Stated such increased Revolving Credit Termination Date 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 written notice executing and delivering to the Administrative Agent in an Additional Credit Extension Amendment specifying (i) the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date amount of such increase (and the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increaseFacility or Facilities involved, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment applicable Incremental Facility Closing Date, (iii) the applicable Borrower(s) and (iv) in the case of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”)Loans, by an amount not in excess of $500,000,000 in (w) the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify applicable Incremental Term Maturity Date, (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or amortization schedule for such Incremental Term Loan Commitments, as applicable, shall be effective, Loans and (y) the identity 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 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) each Lenderof the 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, as of the date of execution and delivery of the applicable acquisition, merger or similar agreement governing such acquisition (provided that, if agreed by the Lenders providing such Incremental Term 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;
(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 an Eligible Assignee not a Loan Party;
(eachG) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), an “Incremental Revolving Loan Lender” or an “all terms of any Incremental Term Loan Lender”Facility, as applicable)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 whom 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 proposes any portion and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline Revolving Loans in respect thereof shall be pursuant to arrange 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 Commitments or 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 Term Loan Commitments Facility Closing Dates may be selected by the Parent Borrower after the Amendment and Restatement Effective Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion, and any .
(b) Any New Lender approached that elects to provide all 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 portion 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, of each Eurocurrency Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurocurrency Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type or Eurocurrency Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Tranche (or, until the expiration of the then-current Interest Period, such other rate as 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 Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitmentevidenced thereby. Any Incremental Term Loans made on an Increased Amount Date shall such amendment may be designated a separate series identified effected in writing by the year of maturity of such Incremental Term Loans (or month Administrative Agent and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this AgreementParent Borrower and furnished to the other parties hereto.
Appears in 2 contracts
Sources: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Incremental Facilities. (a) The Borrower Company may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments in respect of the Global Tranche Commitments and/or the US Tranche Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower Company proposes that the Incremental Revolving Credit Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loan Commitment and (y) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Credit Lender, the Issuing Banks and the Swingline Lender). Notwithstanding anything herein to the contrary, the aggregate Dollar Amount (calculated based on the Dollar Amount of such Indebtedness on the date such Indebtedness was incurred, in the case of Incremental Term Loan Commitments, or first committed, in the case of Incremental Revolving Commitments) of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20, together with the aggregate Dollar Amount (calculated based on the Dollar Amount of such Indebtedness on the date such Indebtedness is incurred) of all Incremental Equivalent Notes previously (or substantially simultaneously) incurred pursuant to Section 6.05(n), shall not exceed the sum of (A) $500,000,000 plus (B) the amount of any voluntary prepayments of the Term Loans and voluntary permanent reductions of the Revolving Commitments effected after the Effective Date (it being understood that any prepayment of Term Loans with the proceeds of substantially concurrent borrowings of new Loans hereunder or any reduction of Revolving Commitments in connection with a substantially concurrent issuance of new revolving commitments hereunder shall not increase the calculation of the amount under this clause (B)) plus (C) unlimited additional Incremental Revolving Commitments, Incremental Term Loan Commitments and Incremental Equivalent Notes so long as, after giving pro forma effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full, but excluding the cash proceeds of any such Incremental Term Loans, Incremental Revolving Commitments and Incremental Equivalent Notes for purposes of netting cash and Cash Equivalents in the calculation of the Leverage Ratio), the Leverage Ratio shall not exceed 3.50 to 1.00 (other than to the extent such Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Notes are incurred pursuant to this clause (C) concurrently with the incurrence of Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Notes in reliance on clause (A) of this sentence, in which case the Leverage Ratio shall be permitted to exceed 3.50 to 1.00 to the extent of such Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Notes incurred in reliance on such clause (A)); provided that, for the avoidance of doubt, Incremental Revolving Commitments, Incremental Term Loan Commitments and Incremental Equivalent Notes may be incurred pursuant to this clause (C) prior to utilization of the amount set forth in clause (A) of this sentence.
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder (including the Tranche under which such Incremental Revolving Commitment is being effected), and shall be treated as a single Class with such Revolving Commitments and Loans under such Tranche. The terms and conditions of any Incremental Term Loan Commitments and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Agreement, identical to those of the Tranche A Term Loan Commitments and the Tranche A Term Loans; provided that (i) the interest rate margins with respect to any Incremental Term Loans shall be as agreed by the Company and the lenders in respect thereof, (ii) any Incremental Term Loan shall have terms, in the Company’s reasonable judgment, customary for a term loan of such type under then-existing market convention, (iii) subject to clause (ii) above, the amortization schedule with respect to any Incremental Term Loans shall be as agreed by the Company and the lenders in respect thereof, provided that the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche A Terms Loans and Incremental Term Loans with the longest remaining weighted average life to maturity, (iv) no Incremental Term Maturity Date with respect to Incremental Term Loans shall be earlier than the Tranche A Term Loan Maturity Date, (v) except as set forth above (or otherwise customary for Incremental Term Loans of such type), the Incremental Term Loans shall be treated no more favorably than the Tranche A Term Loans (in each case, including with respect to mandatory and voluntary prepayments); provided that the foregoing shall not apply to covenants or other provisions applicable only to periods after the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Term Loans; provided further that any Incremental Term Loans may add additional covenants or events of default not otherwise applicable to the Tranche A Term Loans or covenants more restrictive than the covenants applicable to the Tranche A Term Loans in each case prior to the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Facility so long as all Lenders receive the benefits of such additional covenants, events of default or more restrictive covenants (unless such additional covenants, events of default or more restrictive covenants are customarily limited to term loans of the type of such Incremental Term Loans), (vi) to the extent the terms applicable to any Incremental Term Loans are inconsistent with the terms applicable to the Tranche A Term Loans (except, in each case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative Agent, (vii) any Incremental Term Loans shall have the same Guarantees as, shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Loans (except to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent), (viii), in the case of Incremental Term Loans marketed as term “B” loans to institutional investors (“Incremental Term B Loans”), any Incremental Term Loan Amendment with respect to Incremental Term B Loans may (A) include such features as are, in the reasonable judgment of the Company and the Administrative Agent, customarily applicable to such type of loans (including but not limited to the ability to do refinancing amendments, extensions/loan modification offers and repurchases of such Incremental Term B Loans and limitations on the applicability of financial covenants to such Incremental Term B Loans) and (B) may provide for additional Collateral hereunder so long as such Collateral is shared on a pari passu basis with the Loans, (ix) any lenders holding Incremental Term B Loans may agree in advance pursuant to an Incremental Term Loan CommitmentAmendment to certain modifications to the negative (but not financial maintenance) covenants set forth in Article VI hereof so long as such modifications shall not be applicable under this Agreement until such time as, and to the extent that, the Required Lenders (calculated without giving effect to the lenders holding such Incremental Term B Loans) have otherwise approved such modifications. Any Incremental Term Loan Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement. Notwithstanding the foregoing, in no event shall there be more than five (5) maturity dates in respect of the Credit Facilities (including any Replacement Term Loans or Replacement Revolving Facilities).
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate an acquisition permitted by this Agreement for which the Company has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to 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 in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) on and as of such 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 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 Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of the date of execution of the applicable Limited Conditionality Acquisition Agreement by the parties thereto, (4) as of the date of the borrowing of such Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Lenders providing such Incremental Term Loans) shall be true and correct in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) immediately prior to, and after giving effect to, the incurrence of such Incremental Term Loans and (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 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) 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 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 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 of any Class, each Revolving Lender of any applicable Class shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, and each such Incremental Revolving Lender shall purchase from each such Revolving Lender of any applicable Class, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit will be held by all the Revolving Lenders of each applicable Class ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Increm
Appears in 2 contracts
Sources: Credit Agreement (Scotts Miracle-Gro Co), Credit Agreement (Scotts Miracle-Gro Co)
Incremental Facilities. The (a) At any time after the Closing Date, the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”i) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase Latest Revolving Credit Maturity Date, one or more increases to the then existing Revolving Credit Commitments (any such increase, 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 (any such increasein respect thereof, the “Incremental Term Loan Commitments” and, together with the Incremental Revolving Credit Commitments, the “Incremental Loan Commitments”), by . Each Incremental Revolving Credit Commitment and Incremental Term Loan Commitment shall be in an aggregate principal amount not in excess of $500,000,000 the Maximum Incremental Facilities Amount in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually10,000,000 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 Commitment Amount Increase Request notice shall identify (xI) specify (A) the Business Day date (each 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 notice is delivered to the Administrative Agent (or such shorter period as shall be reasonably acceptable to the Administrative Agent) and (yB) the identity of each Lender, Lender or other Person that is a Person that would be permitted to be an Eligible Assignee assignee of the Loans pursuant to Section 13.6(b) (each, an “Incremental Revolving Loan Credit Lender” or an “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, be allocated allocated, and (II) may also provide the amount proposed amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Revolving Credit Commitment or Incremental Term Loan Commitment), and (y) in the case of Incremental Revolving Credit Commitments, the Administrative Agent and the Letter of Credit Issuer shall have consented (such consent not to be unreasonably withheld or delayed) to such Person’s providing such Incremental Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments to such Person. Such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments shall become effective as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, (2) after giving effect to the making of any Incremental Term Loans or effectiveness of Incremental Revolving Credit Commitments, all representations and warranties made by any Credit Party contained herein or in the other Credit Documents shall be true and correct in all material respects (provided that any such representations and warranties which are qualified by materiality, material adverse effect or similar language shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of such Increased Amount Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (provided that 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 Borrower, the Incremental Revolving Credit Lenders or Incremental Term Loan Lenders, as applicable, and the Administrative Agent, each of which shall be recorded in the Register, and (4) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Incremental Lenders providing such Incremental Loan Commitments and required by the applicable Joinder Agreement in connection with any such transaction. Notwithstanding anything to the contrary in this Section 2.14 or any other provision of any other Credit Documents, if the proceeds of any Loans made pursuant to any Incremental Loan Commitments are intended to be applied to finance a Permitted Acquisition or any other acquisition or Investment permitted under the Credit Documents, the calculation of the Maximum Incremental Facilities Amount and the determination as to the Borrower’s compliance with clauses (1) and (2) of the second proviso of this Section 2.14(a), shall be subject, in each case, to the Borrower’s right to make an LCT Election with respect to any Limited Condition Transaction, in which case, Section 1.12(b) shall apply; provided that (x) there shall be no Event of Default under Sections 11.1 and 11.5 (with respect to the Borrower) on the date of Borrowing of such Incremental Loans, and (y) the conditions applicable to the availability of Loans pursuant to such Incremental Loan Commitments shall include customary “limited conditionality” or “certain funds” conditionality provisions.
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected through an increase to any existing Revolving Credit Commitments, subject to the satisfaction of the foregoing terms and conditions, (a) each of the relevant Revolving Credit Lenders shall assign to each of the Incremental Revolving Credit Lenders, and each of the Incremental Revolving Credit Lenders shall purchase from each of the relevant Revolving Credit Lenders, at the principal amount thereof, such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by such existing Revolving Credit Lenders and Incremental Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments, (b) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Credit Lender shall become a Lender with respect to the Incremental Revolving Credit Commitment and all matters relating thereto. The Administrative Agent and the Lenders hereby agree that the minimum assignment, borrowing and prepayment requirements in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(c) Any Incremental Term Loans effected through the establishment of one or more new Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) Class of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class (it being understood that any Incremental Term Loan Facility may provide for delayed draw term loans to be made at a later date), and (ii) each Incremental Term Loan Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto. Notwithstanding the foregoing, Incremental Term Loans may, subject to clause (e) below, have identical terms to the Initial Term Loans (or any other then-existing Class of Term Loans) and be treated as the same Class as the Initial Term Loans (or any other then-existing Class of Term Loans).
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (y) the Class of Incremental Revolving Credit Commitments and the Incremental Revolving Credit Lenders of such Class or the Class of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Class, as applicable, and (z) in the case of each notice to any Revolving Credit Lender with respect to an increase in the Revolving Credit Commitments, the respective interests in such Revolving Credit Lender’s Revolving Credit Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.14.
(e) The terms and provisions of any Incremental Term Loans and Incremental Term Loan Commitments or any Incremental Revolving Credit Commitments, as the case may be, of any Class shall be as agreed between the Borrower and the Incremental Term Loan Lenders or Incremental Revolving Credit Lenders, as applicable, providing such Incremental Term Loans and Incremental Term Loan Commitments or such Incremental Revolving Credit Commitments; provided that to the extent such terms and provisions are not consistent with the terms and provisions of the then existing Term Loans or Revolving Credit Commitments, as applicable (except as permitted by clauses (ii), (iii), (iv), and (v) below), such terms and provisions shall not be more restrictive than the terms and provisions applicable to such existing Term Loans or Revolving Credit Commitments, as applicable, unless (x) the Lenders under such existing Term Loans or Revolving Credit Commitments, as applicable, receive the benefit of such more restrictive terms, (y) any such provisions are applicable only after the Latest Term Loan Maturity Date or Latest Revolving Credit Maturity Date, as applicable, at such time or (z) such provisions are otherwise reasonably satisfactory to the Administrative Agent (which additional terms shall, notwithstanding anything to the contrary in Section 13.1, apply automatically to this agreement without the consent of any Lender, the Letter of Credit Issuer or, in the case of clause (x) or (y) of this paragraph (e), the Administrative Agent). In any event:
(i) any Incremental Revolving Credit Commitments shall have the same terms and ranking as the Revolving Credit Commitments prior to the Increased Amount Date (as such terms may be modified in accordance with the immediately preceding proviso);
(ii) the Weighted Average Life to Maturity of all Incremental Term Loans of any Class shall be no shorter than the Weighted Average Life to Maturity of the Initial Term Loans (except by virtue of amortization or prepayment of the Initial Term Loans prior to the time of such incurrence);
(iii) the Maturity Date of any Class of the Incremental Term Loans shall be no earlier than the maturity of the Initial Term Loans;
(iv) the Incremental Term Loans may share ratably in right of prepayment with the Initial Term Loans pursuant to Section 5.1 or 5.2 or otherwise; provided that the Incremental Term Loans may, as the Borrower and the Incremental Term Loan Lenders may determine in their sole discretion, be afforded lesser payments;
(v) the Effective Yield applicable to the Incremental Term Loans of each Class shall be determined by the Borrower and the Incremental Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the Effective Yield with respect to such Incremental Term Loans shall not be greater than the Effective Yield with respect to the then existing Initial Term Loans, plus 50 basis points per annum unless the interest rate with respect to the Initial Term Loans is increased so as to cause the then applicable Effective Yield on the Initial Term Loans to equal the Effective Yield then applicable to the Incremental Term Loans minus 50 basis points (this proviso to this clause (v), the “MFN Protection”);
(vi) (x) the liens securing the Incremental Term Loans will rank pari passu with the liens securing the Initial Term Loans and (y) the Incremental Term Loans shall have the same guarantees as, and will rank pari passu in right of payment with, the existing Initial Term Loans.
(f) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement (including the imposition of “call protection” on existing Term Loan tranches in the case of any increase thereto) and the other Credit Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provision of this Section 2.14, and this Section 2.14 shall supersede any provisions of Sections 5, 13.8(b) or 13.1 to the contrary.
(g) The Incremental Term Loans, the Incremental Term Loan Commitments and the Incremental Revolving Credit Commitments extended or established pursuant to this Section 2.14 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantee and security interests created by the Security Documents. The Credit Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien granted by the Security Documents continues to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Incremental Term Loans or any such Incremental Term Loan Commitments and Incremental Revolving Credit Commitments.
Appears in 2 contracts
Sources: Credit Agreement (Del Frisco's Restaurant Group, Inc.), Credit Agreement (Del Frisco's Restaurant Group, Inc.)
Incremental Facilities. (a) The Borrower may requeston one or more occasions after the First Refinancing Facility Agreement Effective Date, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so provided that the aggregate amount of all the Incremental Commitments are established hereunder shall not exceed (A) $50,000,000 and (B) such greater amount that will not result in excess 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 $1,000,000,000 Available Domestic Cash and Available Foreign Cash for purposes of the First Lien Secured Leverage Ratio the cash proceeds of the Borrowings under any such Incremental Revolving Facility or Incremental Term Facility, but not less than $5,000,000 individuallyexcluding the use of such proceeds) exceeding 3.75 to 1.00. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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 and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Credit Commitment or an Lender, each Issuing Bank and the Swingline Lender).
(b) The terms of any Incremental Revolving Commitments and Revolving Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that (i) the maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date, (ii) there shall be no mandatory reduction of any Incremental Revolving Commitments prior to the Revolving Maturity Date and (iii) any upfront fees applicable to any Incremental Revolving Facility and Incremental Revolving Commitments and Incremental Revolving Loans shall be as determined by the Borrower and the Incremental Revolving Lenders providing such Incremental Facility. The terms of any Incremental Term Loan Commitment. Any Facility and the Incremental Term Loans to be made on an Increased Amount Date thereunder shall be designated a separate series identified 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 (i) if the all-in yield as determined by the year Administrative Agent in accordance with customary market practice (whether in the form of maturity 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 month and similar fees or original issue discount being equated to interest based on an assumed four-year if there are multiple life to maturity) but not structuring, arrangement or similar fees paid to the arrangers for such Indebtedness) relating to any Incremental Term Loans maturing 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 yearmanner 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%, (eachii) 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 Loans shall be no shorter than the remaining weighted average life to maturity of the Terms Loans and (iv) no Incremental Term Loan Maturity Date shall be earlier than the Term Maturity Date. Any Incremental Term Facilities 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. Notwithstanding anything to the contrary herein, each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Agreements 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) 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 (provided that this clause (i) shall not apply to the extent agreed by the Incremental Lenders if the proceeds of Loans made pursuant to the relevant Incremental Facility are being used to finance an acquisition), (ii) 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, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the 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 Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e).
(h) This Section 2.21 shall supersede any provisions in Section 2.18 or Section 9.02 to the contrary.
Appears in 2 contracts
Sources: Refinancing Facility Agreement (SVMK Inc.), Refinancing Facility Agreement (SVMK Inc.)
Incremental Facilities. (a) The Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in at any time after the form attached hereto as Exhibit G or in such other form acceptable Acquisition Effective Date elect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) request the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by 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 $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individuallyamount. Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (y) or such shorter period as may be agreed by the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicableAdministrative Agent), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender offered or approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment Commitment; provided, further, that any Incremental Lender shall be subject to the approval of the Administrative Agent (such approval not to be unreasonably withheld or delayed) if and to the extent that such approval would be required pursuant to Section 9.04 for an assignment of Loans to such Incremental Term Loan CommitmentLender. Any Incremental Term Loans made on an The Borrower shall notify the Administrative Agent prior to the Increased Amount Date shall be designated a separate series identified by of the year identity of maturity each Lender or other Person that is an Eligible Assignee (each, an “Incremental Lender”) to whom the Borrower proposes any portion of such Incremental Term 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 a condition to the Borrowing under such Incremental Commitments:
A. each of the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects on and as of the date of such Borrowing (both immediately before and after giving effect to such Incremental Commitments and the application of the proceeds thereof) with the same effect as though made on and as of the date of such Borrowing, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); provided that any representation and warranty qualified by “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects; and
B. the Administrative Agent shall have received a fully executed and delivered Borrowing Request in accordance with the requirements hereof, provided that, if the proceeds of any Incremental Commitments are being used to finance a Permitted Acquisition or Investment permitted hereunder, the reference in paragraph (ii)(A) of this Section 2.17(b) to the accuracy of the representations and warranties shall refer to the accuracy of (a) the representations and warranties that would constitute Specified Representations and (y) the representations and warranties made by, or with respect to, the target or the assets that are the subject of such Permitted Acquisition or Investment in the definitive documentation related thereto that are material to the interests of the applicable Incremental Lenders (but only to the extent that the Borrower or its Subsidiaries have the right to terminate its or their respective obligations under such documentation (or decline to consummate the transaction contemplated thereunder) as a result of a breach of such representations);
(iii) the Incremental Commitments shall be effected pursuant to one or more Incremental Amendments executed and delivered by the Borrower, the Incremental Lenders and the Administrative Agent;
(iv) the Borrower shall deliver or cause to be delivered any documents as reasonably requested by the Administrative Agent in connection with any such transaction, including (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents (including, for the avoidance of doubt, any Mortgage) as may be reasonably requested by the Administrative Agent; and
(v) the Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental Commitments.
(c) On any Increased Amount Date on which any Incremental Commitments become effective, subject to the satisfaction of the foregoing terms and conditions, (i) each applicable Incremental Lender shall make a Loan to the Borrower (an “Incremental Loan”) in an amount equal to its Incremental Commitment and (ii) each Incremental Lender shall become a Lender hereunder with respect to the Incremental Commitment and the Incremental Loans made pursuant thereto.
(d) The terms and provisions of the Incremental Loans and Incremental Commitments shall be, except as otherwise set forth herein or in the Incremental Amendment, identical to the then existing Loans. In any case, (i) the Weighted Average Life to Maturity of all Incremental Loans shall be no shorter than the Weighted Average Life to Maturity of the then existing Loans, (ii) the applicable Incremental Loan Maturity Date shall be no earlier than the Latest Maturity Date at such time; provided, that at no time shall the Loans (including Incremental Loans) have more than five different maturity dates, (iii) all Incremental Loans shall rank pari passu in right of payment and with respect to security with the then existing Loans, (iv) all Incremental Loans shall be guaranteed by the Loan Parties and be secured by a lien on any property or month asset that secures the then existing Loans, (v) the interest margins applicable to the Incremental Loans shall be determined by the Borrower and year the applicable Incremental Lenders and shall be set forth in each applicable Incremental Amendment; provided, however, that if there are multiple the All-In Yield applicable to such Incremental Term Loans maturing 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 same yearproviso below, the Eurocurrency or Alternate Base Rate floor) (eachwith respect to each such Class of Loans shall be increased by the applicable Yield Differential; provided, further, that, if any Incremental Loans include a “Series”) Eurocurrency or Alternate Base Rate floor that is greater than the Eurocurrency or Alternate Base Rate floor applicable to any existing Class of Incremental Term Loans such differential between interest rate floors shall be included in the calculation of All-In Yield for all 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 2.17(d)) applicable to the applicable existing Loans shall be 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 applicable Incremental Amendment and (vii) to the 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 terms and provisions applicable only to periods after the Latest Maturity Date), they shall be reasonably acceptable to the Administrative Agent.
(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 Lender providing such Incremental Commitments and the Administrative Agent. The Incremental 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 2.17 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 in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.17, including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary to enable any Incremental Loans that are intended to be fungible 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 Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Loans.
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Staples Inc)
Incremental Facilities. (a) The Borrower may requestmay, from time to at any time, on any Business Day prior one or more occasions pursuant to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) an Incremental Facility Agreement (i) an add one or more new tranches of term facilities and/or increase the principal amount of the Tranche B-1 Term Loans or any Additional Term Loans by requesting new term loan commitments to the then existing Revolving Credit Commitments be added to such Loans (any such new tranche or increase, the an “Incremental Revolving Credit CommitmentsTerm Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) the establishment of add one or more new term loan commitments tranches of incremental revolving “cash-flow” facilities and/or increase the aggregate amount of Commitments of any existing Class of Incremental Revolving Commitments (any such new tranche or increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan LenderFacility” or an and, together with any Incremental Term Facility, “Incremental Term Loan LenderFacilities”; and the loans thereunder, as applicable), to whom the Borrower proposes any portion of such “Incremental Revolving Credit Commitments or Loans” and, together with any Incremental Term Loan CommitmentsLoans, as applicable, be allocated and the amount of such allocations“Incremental Loans”); provided that Administrative Agent the aggregate principal amount of all Incremental Facilities incurred after the Third Amendment Effective Date shall not exceed the Incremental Cap; provided, further, that:
(i) no Incremental Commitment may elect be less than $5,000,000,
(ii) 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 decline 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 arrange 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 Revolving Credit Commitments Facility or Incremental Term Loan Commitments Loans; provided that in its sole discretion, and the case of any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or declineFacility 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 its sole discretion, to provide an Incremental Revolving Credit Commitment or an the same currency as such Incremental Term Loan Commitment. Any 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 made on an Increased Amount Date shall be designated a separate series identified by no earlier than the year Latest Term Loan Maturity Date at the time of maturity the incurrence thereof,
(vii) the Weighted Average Life to Maturity of such any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the then-existing tranche of Term Loans (or month and year if there are multiple without giving effect to any prepayments thereof),
(viii) (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing tranche of Term Loans maturing in right of payment and pari passu with or junior to any then-existing tranche of Term Loans with respect to security or may be unsecured (and to the same yearextent the relevant Incremental Facility is pari passu with or subordinated to the Term Loans in right of payment or security and documented in a separate agreement, it shall be subject to an Acceptable Intercreditor Agreement) and (each, B) no Incremental Facility may be (x) guaranteed by any Person which is not a “Series”Loan Party or (y) secured by any assets other than the Collateral,
(A) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are pari passu with any then-existing Term Loans in right of payment and security shall be made on a pro rata basis with such existing Term Loans and (B) any prepayment (other than any scheduled amortization payment) of Incremental Term Loans that are subordinated to any then-existing Term Loans in right of payment or security shall be made on a junior basis with respect to such existing Term Loans (and all other then-existing Additional Term Loans requiring ratable prepayment), except, in each case, that the Borrower and the lenders providing the relevant Incremental Term Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),
(x) except as otherwise agreed by the lenders providing the relevant Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this Agreement, no Event of Default shall exist immediately prior to or after giving effect to such Incremental Facility,
(xi) except as otherwise required or permitted in clauses (v) through (ix) above, all other terms of any Incremental Term Facility, if not consistent with the terms of the Initial Term Loans, shall be reasonably satisfactory to the Borrower and the 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 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),
(xii) the proceeds of any Incremental Facility may be used for working capital and other general corporate purposes and any other use not prohibited by this Agreement,
(xiii) on the date of the making of any Incremental Term Loans that will be added to any Class of Initial Term Loans or Additional Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08 or 2.13, such Incremental Term Loans shall be added to (and constitute a part of) each borrowing of outstanding Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then outstanding borrowing of Initial Term Loans or Additional Term Loans, as applicable, of the same type with the same Interest Period of the respective Class; and
(xiv) at no time shall there be more than three separate Maturity Dates in effect with respect to any existing Additional Revolving Facility at any time.
(b) Incremental Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided further that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment.
(c) Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent 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 of 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, in order to appropriately incorporate revolving facility provisions, including those relating to (i) conditions to borrowing, payments, prepayments, purchases of participations and reallocation mechanisms, letter of credit, swingline and/or other subfacilities, (ii) mechanisms to allow for additional Incremental Revolving Facilities (e.g. pro rata treatment and exceptions to such pro rata treatment upon the maturity of any such Incremental Revolving Facility), (iii) tranche voting by revolving lenders with respect to conditions precedent to the making of revolving loans, any financial covenant required in connection with any Incremental Revolving Facility and definitions relating to the foregoing and (iv) consent by any issuing bank or swingline lender to matters affecting its rights or obligations in such capacity. The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Agreement and any other amendments to this Agreement and the other Loan Documents with the Loan Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.22.
(f) To the extent the provisions of clause (a)(xiii) above require that Term Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding borrowings of LIBO Rate Loans of the respective Class of Initial Term Loans or Additional Term Loans, as applicable, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the respective Class and which will end on the last day of such Interest Period).
(g) Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance an acquisition and the Lenders or Additional Lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the contrary.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (PQ Group Holdings Inc.), Term Loan Credit Agreement (PQ Group Holdings Inc.)
Incremental Facilities. The (a) On one or more occasions at any time on or after the Effective Date, the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to request an increase to the Administrative Agent size of an existing Facility (each such increase, a “Term Loan Increase”) and/or the establishment of one or more incremental term loan facilities (each, 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 Amount Increase RequestIncrease”) such that the aggregate amount of the Facilities as so increased, including all such Incremental Term Facilities, does not exceed at least 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 prior (or such lesser number of days as the Administrative Agent shall agree) after the date on which such notice is delivered to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increaseAdministrative Agent. The Administrative Agent, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increaseArrangers, the “Incremental Term Loan Commitments”)Syndication Agents and/or their respective Affiliates shall use commercially reasonable efforts, by an amount not in excess with the assistance of $500,000,000 in the aggregate so Borrower, to arrange a syndicate of Lenders or other Persons that are Eligible Assignees willing to hold the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such requested Commitment Amount Increase Request shall identify Increase; provided that (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments any Commitment Increase may elect or decline, in its sole discretion, to provide participate in a Commitment Increase, and (y) any Lender or other Person that is an Incremental Revolving Credit Eligible Assignee to whom any portion of such Commitment or Increase shall be allocated (each, an “Incremental Term Loan Commitment. Any Incremental Term Loans made 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 that the effectiveness of any Commitment Increase and the availability of any borrowings under any such Commitment Increase on an the Increased Amount Date shall be designated a separate series identified subject to the satisfaction of the following conditions precedent:
(i) after giving pro forma effect to such Commitment Increase and borrowings and the use of proceeds thereof, no Event of Default shall exist and be continuing;
(ii) the representations and warranties made or deemed made by the year Borrower in any Loan Document shall be true and correct in all material respects on the Increased Amount Date of maturity such Commitment Increase except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) or are qualified by materiality (in which case such representations and warranties shall be true and correct in all respects) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents;
(iii) payment by the Borrower to the Joint Lead Arrangers/Joint Bookrunners and/or the Administrative Agent, for its own account and/or for the benefit of the Incremental Term Loan Lenders participating in such Commitment Increase, of any applicable fees and expenses required to be paid as of the applicable Increased Amount Date;
(iv) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent:
(A) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (x) all corporate or other necessary action taken by the Borrower to authorize such Commitment Increase and (y) all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the Guaranty by such Guarantor of such Commitment Increase;
(B) a certificate of the Borrower dated as of the applicable Increased Amount Date signed by an Authorized Officer thereof, certifying that, before and after giving effect to such Incremental 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 Administrative Agent and its counsel (a “New Lender Joinder Agreement”) for each Eligible Assignee that is not an existing Lender and is becoming a Lender in connection with such Commitment Increase, duly executed by the Borrower and each such Eligible Assignee and acknowledged and, if required pursuant to Section 9.04(b), consented to in writing by the Administrative Agent; and
(F) written confirmation from each existing Lender, if any, participating in such Commitment Increase of the amount of New Term Loans to be provided by it;
(v) any Commitment Increase that constitutes an increase in an existing Facility shall be 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 Loans Facility (or month 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 year if there are multiple administrative provisions of such Incremental Term Facility shall be on terms reasonably acceptable to the Administrative Agent, and (ii) all Incremental Term Loans maturing under each Incremental Term Facility shall rank pari passu in right of payment with all other Term Loans and shall be treated substantially the same yearas (and in any event no more favorably than) all other Term Loans. Incremental Term Facilities may be made hereunder pursuant to a supplement, an amendment or an amendment and restatement (each, a an “SeriesIncremental Term Facility Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Incremental Term Loans for all purposes Loan Lender (including any Eligible Assignee becoming a party to this Agreement as an Incremental Term Loan Lender) with respect to such Incremental Term Facility and the Administrative Agent. 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 Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this AgreementSection 2.04. Each Incremental Term Facility will be on such terms (including as to amortization and maturity) as are agreed to by the Borrower and each Incremental Term Loan Lender with respect to such Incremental Term Facility but all New Term Loans under any such Incremental Term Facility will in any event mature on the Maturity Date; and
(vii) upon the reasonable request of any Lender or any Eligible Assignee participating in such Incremental Term Facility made at least ten (10) Business Days prior to the applicable Increased Amount Date, the Borrower shall have provided to such Lender or Eligible Assignee, and such Lender or Eligible Assignee shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including, without limitation, the Act and the Beneficial Ownership Regulation, if applicable, in each case at least five (5) Business Days prior to such Increased Amount Date.
(c) [Intentionally omitted].
(d) On any Increased Amount Date on which any Commitment Increase is effected, subject to the satisfaction of the foregoing terms and conditions and the conditions set forth in Section 4.02, each Incremental Term Loan Lender participating in such Commitment Increase shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its allocated share of such Commitment Increase.
(e) On each Increased Amount Date, the Administrative Agent shall notify the Lenders of the occurrence of the Incremental Term Facility effected on such Increased Amount Date, the amount of the Incremental Term Facility and the amount of the Incremental Term Commitment of each Term Loan Lender as a result thereof.
(f) The upfront fees payable to the Incremental Term Loan Lenders with respect to any Incremental Term Facility shall be determined by the Borrower and such Incremental Term Loan Lenders.
(g) Subject to the foregoing, the Borrower, the Incremental Term Loan Lenders participating in any Incremental Term Facility and the Administrative Agent may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to such Incremental Term Facility and the provisions of this Section 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 Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days request, prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments Latest Maturity Date, additional term loans hereunder (any such increaseadditional term loans, the “Incremental Revolving Credit Loans” and the commitments therefor, the “Incremental Commitments”); provided that (i) and/or the total aggregate initial principal amount (as of the date of incurrence or availability thereof) of such requested Incremental Loans or Incremental Commitments, when added to the aggregate principal amount of Incremental Equivalent Debt incurred at such time, shall not exceed the Incremental Limit on such date, (ii) the establishment total aggregate principal amount of one such Incremental Loans or more new term loan commitments 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 increaseIncremental Loans or Incremental Commitments is permitted pursuant to the terms of the Revolving Indebtedness Documents.
(b) Each such notice shall specify (i) the date (each, the an “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Closing Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, Loans shall be effectivemade, 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 (yi) the identity of each Lender, Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), eligible assignee pursuant to Section 13.6(b) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated (each, an “Incremental Lender”) and the amount amounts of such allocations; provided that (x) no Incremental Lender that is not an existing Lender, an Affiliate of a Lender or an Approved Fund shall provide Incremental Loans unless the Administrative Agent may elect shall have consented thereto (such consent not to be unreasonably withheld or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, delayed) and (y) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments Loans may elect or decline, in its sole discretion, to provide an such Incremental Revolving Loans.
(c) The terms of each incurrence of Incremental Loans or Incremental Commitments shall be determined by the Borrower and the applicable Incremental Lenders; provided that:
(i) Incremental Loans or Incremental Commitments (x) secured on a pari passu basis with the Obligations shall not mature earlier than the Latest Maturity Date and the Weighted Average Life to Maturity of such Incremental Loans or Incremental Commitments shall not be shorter than the remaining Weighted Average Life to Maturity of the Loans outstanding as of such Incremental Closing Date and (y) either secured on a junior basis to the Obligations or unsecured shall not mature earlier than 91 days after the Latest Maturity Date of the Loans outstanding as of such Incremental Closing Date (except in the case of customary bridge loans which, subject to customary conditions (including no payment or bankruptcy event of default), would either automatically be converted into or required to be exchanged for permanent refinancing which does not mature earlier than 91 days after the Latest Maturity Date of the Loans outstanding as of such Incremental Closing Date and the applicable Credit Commitment Party agrees at the time of incurrence thereof to take all such actions required to cause such conversion or an 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 All-In Yield of any Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount incurred within twelve (12) months after the Closing Date shall be designated a separate series identified determined by the year of maturity of Borrower and the applicable Incremental Lenders (provided that the All-In Yield applicable to such Incremental Term 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); (or month and year if there are multiple Incremental Term Loans maturing in the same yeariii) (eachA) if such Incremental Loans are secured, a “Series”they will be secured solely by Collateral on pari passu or junior (but in no event senior) of basis with the Obligations and, if necessary, will be subject to an Acceptable Intercreditor Agreement and (B) no Incremental Term Loans for all purposes of this Agreement.shall be guaranteed by any Person other than the Subsidiary Guarantors;
Appears in 2 contracts
Sources: Credit Agreement (WABASH NATIONAL Corp), Credit Agreement (WABASH NATIONAL Corp)
Incremental Facilities. The Borrower (a) On one or more occasions at any time after the Closing Date, the Obligors may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) request an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) ” and the establishment of one or more new term loan commitments (any such increaseloans made thereunder, the “Incremental Term Loan CommitmentsLoans”), by ) in an aggregate amount not in excess of to exceed $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually300,000,000. Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Borrower proposes Obligors propose that the such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and which shall be a date not less than ten (y10) Business Days (or such shorter period as may be agreed by the identity of each LenderAdministrative Agent) after the date on which such notice is delivered to the Administrative Agent. Incremental 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 Loan) or by any other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), ; provided that any such Incremental Lender to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, Commitment shall be allocated shall be subject to the approval of the Borrower, the Administrative Agent, the Issuing Banks and the Swingline Lender unless such Incremental Lender is an existing Lender (each of which approvals shall not be unreasonably withheld, conditioned or delayed). The terms and provisions of any Incremental Commitments shall be identical to the existing Commitments.
(b) The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment shall be subject to the satisfaction of the following conditions precedent:
(i) immediately prior to and after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, no Default or Event of Default shall exist;
(ii) the representations and warranties made or deemed made by the Obligors in Article III hereof shall be true and correct in all material respects on the Increased Amount Date except to the extent that such representations and warranties expressly relate solely to an earlier date (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 Loan Documents;
(iii) the Administrative Agent shall have received one or more Additional Credit Extension Amendments, providing for Incremental Commitments in the amount of such allocationsincrease; provided that and
(iv) the Administrative Agent shall have received an opinion of counsel to the Loan Parties (in substantially the same form as delivered on the Closing Date which may elect or decline at the option of the Borrower be delivered by internal counsel of the Loan Parties), and addressed to arrange the Administrative Agent and the Lenders.
(c) On each Increased Amount Date, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders and Incremental Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Revolving Credit Commitments or to the Commitments, (b) each Incremental Term Commitment shall be deemed for all purposes a Commitment and each Loan made thereunder shall be deemed, for all purposes, a Loan and (c) each Incremental Lender shall become a Lender with respect to its Incremental Commitment and all matters relating thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of notice of each Increased Amount Date and in respect thereof (y) the Incremental Commitments in its sole discretionand the Incremental Lenders, and (z) in the case of each notice to any existing Lender, the respective interests in such ▇▇▇▇▇▇’s Revolving Loans, in each case subject to the assignments contemplated by this Section.
(e) Any upfront fees payable to the Incremental Lenders shall be determined by the Borrower and the applicable Lenders.
(f) The Incremental Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Obligors, the Incremental Lender approached 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 provide all 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 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 outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (1) participations hereunder in Letters of Credit and (2) participations hereunder in Swingline Loans held by each Lender will equal the percentage of the aggregate Commitments of all Lenders represented by such ▇▇▇▇▇▇’s Commitments; and
(ii) if, on the date of such increase, there are Revolving Loans then outstanding, the Borrower shall prepay such Revolving Loans (and pay any additional amounts required pursuant to Section 2.15 in connection therewith) with the proceeds of Revolving Loans from the Incremental Lender(s) to the extent necessary in order that, after giving effect to such prepayments and borrowings, all Revolving Credit Loans will be held ratably by the Lenders (including the Incremental Lender(s)) in accordance with their respective Commitments or after giving effect to the applicable Incremental Term Loan Commitments may elect or declineCommitment(s). The Administrative Agent, the Issuing Banks and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in its sole discretion, this Agreement shall not apply to provide an the transactions effected pursuant to this Section 2.04(g).
(h) Any upfront fees payable to the Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date Lenders shall be designated a separate series identified determined by the year of maturity of such Incremental Term Loans (or month Borrower and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreementapplicable Lenders.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Millicom International Cellular Sa), Revolving Credit Agreement (Millicom International Cellular Sa)
Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in and with the form attached hereto as Exhibit G or in such other form acceptable to consent of the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to and the desired effective date of such increase (the “Commitment Amount Increase”) Incremental Lenders, request (i) an increase during the period from and including the Restatement Effective Date to but not including the then existing Revolving Credit Maturity Date (or any earlier date on which the Commitments (any such increasehave been terminated as provided herein), the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments Incremental Term Commitments, provided that the aggregate principal amount of all the Incremental Commitments established hereunder shall not exceed $500,000,000 (any such increase, the “Incremental Term Loan CommitmentsCommitted Amount”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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 Credit Commitment or an and loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made hereunder, and shall be treated as a single class with such Revolving Commitments and Loans. The terms and conditions of any Incremental Term Loan CommitmentCommitments 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 made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, 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 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 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 on such date, (ii) on the date of effectiveness thereof, the representations and warranties of the Borrower 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 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, (iv) the Borrower shall make any payments required to be made pursuant to Section 3.14 in connection with such Incremental Commitments and the related transactions under this Section and (v) the Borrower shall have delivered 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, 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 Credit Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) in the case of an Incremental Lender that does not already have a Revolving Commitment, such Incremental Revolving Commitment shall constitute the Revolving Commitment of such Incremental Lender and (B) in the case of an Incremental Lender that already has a Revolving Commitment, the Revolving Commitment of such Incremental Lender shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Incremental Revolving Commitment, and the Revolving Loan Commitment 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, 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 Agent of any notice from the Borrower referred to in 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 effectiveness of any Incremental Revolving Commitments, of the Revolving Loan Commitment Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.7(e).
Appears in 2 contracts
Sources: Credit Agreement (Quest Diagnostics Inc), Credit Agreement (Quest Diagnostics Inc)
Incremental Facilities. (a) The Borrower may requeston one or more occasions after the Closing Date, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent 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 the form attached hereto as Exhibit G or in aggregate amount of the Incremental Commitments incurred under this Section 2.12 on any date shall not exceed the Available Incremental Amount. Each such other form acceptable to notice shall specify (A) the Administrative Agent (date on which the Company proposes that the Incremental Commitments shall be effective, which shall be a “Commitment Amount Increase Request”) at least date not less than five (5) Business Days prior (or such shorter period as may be agreed to by the Administrative Agent (at the direction of the Incremental Lenders)) after the date on which such notice is delivered to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, Administrative Agent and (yB) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments being requested (it being agreed that Corre, the Corre Affiliates or Incremental Term Loan Commitments any such Eligible Assignee may elect or decline, in its their sole discretion, to provide an such Incremental Revolving Credit Commitment or an Commitments).
(b) The terms and conditions of any Incremental Loans to be made thereunder shall be, except as otherwise set forth in the applicable Incremental Facility Amendment, substantially consistent to those of the 2025 Term Loan Commitment. Any Commitments and the 2025 Term Loans.
(c) The Incremental Term Loans made on an Increased Amount Date Commitments shall be designated a separate series identified effected pursuant to one or more Incremental Facility Amendments executed and delivered by the year Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless no Default or Event of maturity Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Term Commitments shall have been funded as Loans on such date).
(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 month Lenders in respect of Commitments and year if there are multiple Incremental Term Loans maturing 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.
(e) Subject to the terms and conditions set forth herein and in the same year) (eachapplicable Incremental Facility Amendment, a “Series”) of each Lender holding an Incremental Term Loans for all purposes of this AgreementCommitment shall make an Incremental Loan to the Borrower in an amount equal to such Incremental Commitment on the date 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 Borrower may requestmay, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable and each Lender (with a copy to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days Collateral Agent), request, prior to the desired effective date last day of such increase (the “Commitment Amount Increase”) (i) Revolving Period, an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit New Commitments”) and/or by an amount not to exceed $400,000,000 (and the sum of the existing Commitments and any New Commitments shall not exceed $1,000,000,000 in the aggregate). Each such notice shall specify (i) the amount of the New Commitment, (ii) the establishment of one or more new term loan commitments date (any such increaseeach, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit New Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, effective and approved in writing by the Administrative Agent and (yiii) the identity of each Lender, Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Increasing Lender”, as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit 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 Incremental Term Loan Borrowing Base Deficiency shall exist on such Increased Amount Date before or after giving effect to such New Commitments; (B) the New Commitments shall be effected pursuant to an Assignment and Acceptance for each existing Lender (if applicable), or one or more Joinder Supplements for any new Lender executed and delivered by the Borrower, such new Lender and the Administrative Agent, and each of which shall be recorded in the Register; (C) the Borrower shall pay any applicable required fees in connection with the New Commitments; (D) the Borrower shall deliver or cause to be delivered any legal opinions or other customary closing documents (substantially consistent with the documents set forth in Section 3.01) reasonably requested by Administrative Agent or an Increasing Lender in connection with any such transaction; and (E) the effectiveness of any allocation of New Commitments to a 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 each notice to any Lender, the respective interests in such ▇▇▇▇▇▇’s Advances, in each case subject to the assignments contemplated by this Section 2.20.
(d) The terms and provisions of the New Advances shall be identical to the Advances. Each Assignment and Acceptance or each Joinder Supplement, as applicable, be allocated may, without the consent of any other Lenders, effect such amendments to this Agreement and the amount other Transaction Documents as may be necessary or appropriate, in the opinion of such allocations; provided that the Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretionAgent, and any Lender approached consented to provide all or a portion of by the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretionBorrower (such consent not to be unreasonably withheld), to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitmenteffect the provisions of this Section 2.20. Any Incremental Term Loans made on an Increased Amount Date The effectiveness of any New Commitments shall be designated a separate series identified conditioned upon any such amendment being entered into by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreementparties hereto.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund), Loan and Servicing Agreement (HPS Corporate Lending Fund)
Incremental Facilities. The (a) Subject to Section 2.11(b), the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) request the establishment of one or more new term loan Incremental Term Loan commitments (any such increase, the “Incremental Term Loan Commitments”), by in an aggregate amount not in excess of up to $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually70,000,000. Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, Commitments shall be effective, and (y) which shall be a date not less than 30 days after the identity date on which such notice is delivered to the Agent. The opportunity to commit to provide all or a portion of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “the Incremental Term Loan Lender”, as applicable), to whom Commitment shall be offered by the Borrower proposes to any portion of Eligible Incremental Lenders. To the extent any Eligible Incremental Lenders have provided a commitment to provide such Incremental Revolving Credit Commitments or Incremental Term Loan CommitmentsCommitment, as applicable, be allocated and the amount Borrower shall provide a copy of such allocations; provided that Administrative commitment letter to the Agent may elect or decline for distribution to arrange the existing Lenders and offer the existing Lenders the opportunity to provide such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments Commitment on the same terms as set forth in its sole discretionsuch 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 any subject to this Section 2.11. Any existing Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or such Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an such Incremental Term Loan Commitment. Any .
(b) Such Incremental Term Loans 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 Incremental Term Loan Lenders, the Borrower and the Agent have signed an amendment to this Agreement pursuant to which such Incremental Term Loan Lenders agree to make, subject to the terms of this Agreement, a term loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment and to otherwise evidence such Incremental Term Loan, in form and substance reasonably satisfactory to the Agent (each, a ”Joinder Agreement”); (iii) no Default or Event of Default shall exist on such Increased Amount Date; (iv) the representations and warranties of the Credit Parties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) as of such Increased Amount Date to the same extent as though made on and as of that date (both before and immediately after giving effect to such Loan), except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of such earlier date; and (v) the Borrower shall have reached agreement with the lenders making the Incremental Term Loan (the “Incremental Term Loan Lenders”) with respect to the interest margins applicable to such Incremental Term Loan (which interest margins may be higher than, equal to, or lower than the interest margins applicable to the Term Loan set forth in this Agreement immediately prior to the date of the making of such Incremental Term Loan, as applicable) and shall have communicated the amount of such interest margins to the Agent. Anything to the contrary contained herein notwithstanding, if the all in yield (including interest margins, interest floors, original issue discount, closing fees or other similar yield related discounts based on an assumed four-year to life maturity, but excluding any arrangement, underwriting or similar fees that are not shared with all of the Lenders or prospective lenders) (the “All In Yield”) that is to be applicable to such Incremental Term Loan is 50 basis points or more higher than the All In Yield applicable to the Term Loans 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 Loans immediately prior to the Increased Amount Date shall be designated a separate series identified increased by the year amount of maturity the Excess minus 50 basis points, effective on the applicable Increased Amount Date, and without the necessity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreementany action by any party hereto.
Appears in 2 contracts
Sources: Credit Agreement (Rent the Runway, Inc.), Credit Agreement (Rent the Runway, Inc.)
Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may request, from time to timetime agree that such Lenders shall make, on obtain or increase the amount of their Incremental Term Loans (an “Incremental Term Facility”) or Revolving Commitments (“Increased Revolving Commitments”; together with any Business Day prior to Incremental Term Facility, the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date “Incremental Facilities”), as applicable, by written notice executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase, (ii) the applicable Increased Facility Closing Date, (iii) in the form attached hereto case of Incremental Term Loans, (x) the applicable Incremental Term Maturity Date, (y) the amortization schedule for such Incremental Term Loans, and (z) the Applicable Margin for such Incremental Term Loans; provided, that (i) no Event of Default exists or would exist after giving effect to such Incremental Facility, (ii) on a pro forma basis after giving effect to the incurrence of any such Incremental Facility (assuming, if such Incremental Facility consists of Increased Revolving Commitments, such Increased Revolving Commitments are fully drawn as Exhibit G of such date) and after giving effect to other permitted pro forma adjustment events and any repayments of Indebtedness after the beginning of the relevant period but prior to or simultaneous with the incurrence of such Incremental Facility, (x) the Borrower shall be in compliance with the financial covenants set forth in Section 7.1 recomputed as of the last day of the fiscal quarter of the Borrower then most recently ended for which financial statements described in Section 6.1(a) or (b) have been delivered, (y) the Consolidated First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries as of the end of such other form acceptable 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 Article IV shall be true and correct in all material respects (except 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 to be true and correct in all material respects only as of such specified date) immediately prior to, and after giving effect to, the incurrence of such Incremental Facility, (iv) the maturity date and Weighted Average Life to Maturity of any such Incremental Term Facility shall be no earlier than (or the same as) the maturity date and Weighted Average Life to Maturity, respectively, of the 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 to the extent permitted by clause (iv) and (v) above), reasonably satisfactory to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior including as to the desired effective date identity of the New Lenders); provided, that if the total yield (calculated for both the Incremental Term Loans and the Term Loans, including the upfront fees, any interest rate floors and any OID (as defined below)) shared with all providers of such increase 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 (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (it being understood that any such increase, increase may take the form of original issue discount (“Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan CommitmentsOID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an amount not in excess of $500,000,000 in assumed four-year life to maturity), the aggregate Applicable Margin for the Loans shall be increased so that the aggregate Commitments are not total yield in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity respect of such Incremental Term Loans is no higher 0.50% greater than the total yield for the existing Term Loans. Notwithstanding the foregoing, (or month and year if there are multiple i) without the consent of the Required Lenders, the aggregate amount of Increased Revolving Commitments obtained after the Closing Date pursuant to this paragraph, together with the aggregate amount of Incremental Term Loans maturing obtained pursuant to this paragraph and the amount of any Second Lien Incremental Loans, shall not exceed $25,000,000 and (ii) without the consent of the Administrative Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of at least $5,000,000. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the same yearconsent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each, a “SeriesNew Lender Supplement”), substantially in the form of Exhibit H-3, whereupon such bank, financial institution or other entity (a “New Lender”) of Incremental Term Loans shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the Revolving Facility, the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Borrower and the relevant Lender.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Bioventus Inc.), First Lien Credit Agreement (Bioventus Inc.)
Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide an such Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment, (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Bank and (z) none of the Persons described in the foregoing clauses (x) and (y) may be an Ineligible Institution). Notwithstanding anything herein to the contrary, the aggregate amount of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20 shall not exceed the sum of (A) $75,000,000 plus (B) unlimited additional Incremental Revolving Commitments and/or Incremental Term Loan Commitments so long as, after giving pro forma effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full, but excluding the proceeds of any such Incremental Term Loans and/or Incremental Revolving Commitments for purposes of netting cash and Permitted Investments in the calculation of the Senior Secured Net Leverage Ratio), the Senior Secured Net Leverage Ratio shall not exceed 2.50 to 1.00 (other than to the extent such Incremental Revolving Commitments and/or Incremental Term Loan Commitments are incurred pursuant to this clause (B) concurrently with the incurrence of Incremental Revolving Commitments and/or Incremental Term Loan Commitments in reliance on clause (A) of this sentence, in which case the Senior Secured Net Leverage Ratio shall be permitted to exceed 2.50 to 1.00 to the extent of such Incremental Revolving Commitments and/or Incremental Term Loan Commitments incurred in 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 have a 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 Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, 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) 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, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act; and
(vii) the other conditions, if any, set forth in the applicable Incremental Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be continuing or would result from entry into the Limited Conditionality Acquisition Agreement, (2) as of the date of the borrowing of such Incremental Term 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 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 provisions of this Section and no consent of any Lender (other than the Lenders participating in the increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder (it being understood that such Incremental Lender shall deliver the documentation required under Section 2.17(f) to the Administrative Agent and the Borrower) and under the other Loan Documents, 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 equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the 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 Revolving Commitments, of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to paragraph (e) above.
Appears in 2 contracts
Sources: Credit Agreement (Eagle Pharmaceuticals, Inc.), Credit Agreement (Eagle Pharmaceuticals, Inc.)
Incremental Facilities. The Borrower (a) Holdings may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”A) at least five (5) Business Days prior to the desired effective date Maturity Date of such increase (the “Commitment Amount Increase”) (i) Revolving Credit Facility, an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (iiB) prior to the Maturity Date of the Term A Facility, the establishment of one or more new term loan A commitments (any such increase, the “Incremental Term Loan A Commitments”), ) by an amount not in excess of an aggregate amount equal to $500,000,000 in after the aggregate so that Third Restatement Date (such amount, the aggregate Commitments are not in excess of $1,000,000,000 “Incremental Capacity”) and not less than $5,000,000 25,000,000 individually. Each such Commitment Amount Increase Request notice shall identify specify (xi) the Business Day date (each each, an “Increased Amount Date”) on which the Borrower Holdings proposes that the Incremental Revolving Credit Commitments or 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 (yii) the identity of each Lender, Lender or other Person that is Person, which must be an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan A Lender”, as applicable), ) to whom the Borrower Holdings proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan A Commitments, as applicable, be allocated and the amount amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any . Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan A Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan A Commitment. Such US-DOCS\70212156.16 Incremental Revolving Commitments or Incremental Term Loan A Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Commitments or Incremental Term Loan A Commitments, as applicable, and the extensions of credit to be made thereunder on such date; (ii) both before and immediately after giving effect to the making of any Incremental Term A Loans, each of the conditions set forth in Section 4.03 shall be satisfied; (iii) Holdings shall be in pro forma compliance with each of the covenants set forth in Section 7.11, in each case as of the last day of the most recently ended fiscal quarter and as of the Increased Amount Date (assuming for such purpose that the relevant ratios shall have been calculated taking into account all Consolidated Funded Indebtedness outstanding on such date, Consolidated EBITDA as of the most recently completed Measurement Period and the Consolidated Cash Interest Expense for such Measurement Period (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 question set forth in Section 7.11 (as applicable))) after giving effect to 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 security with the Revolving Credit Facility and 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 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 identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term A Loans for all purposes of this AgreementAgreement or, if made on terms identical to (i) in the case of Incremental Term A Loans denominated in Australian Dollars, the Australian Dollar Term A Loans or (ii) in the case of Incremental Term A Loans denominated in Euros, the Euro Term A Loans, may constitute a part of the Australian Dollar Term A Facility or the Euro Term A Facility, as applicable.
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Sources: Credit Agreement (ACCO BRANDS Corp)
Incremental Facilities. The On one or more occasions at any time after the Closing Date, the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the request establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by in an aggregate amount not exceeding $180,000,000 that would result in excess 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 so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individuallyaggregate. Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Borrower proposes that the such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, 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) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Commitment; provided that the Lenders will first be afforded the opportunity to provide the Incremental Term Loan Commitment. Any Incremental Term Loans made Commitments on an Increased Amount Date 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 designated a separate series identified by the year of maturity of deemed to have declined to provide such Incremental Term Loans Commitments, and (z) any Lender or month and year if there are multiple Incremental Term Loans maturing in the same year) other Person that is an Eligible Assignee (each, a “SeriesNew 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 for all purposes shall (a) provide that the maturity date of this Agreement.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,
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Incremental Facilities. The Borrower may request, from time to time, on any Business Day time after the Closing Date and prior to the date that is sixty Fifth Amendment Effective Date, establish one or more tranches of term loans or increase an outstanding tranche of term loans (60each an “Incremental Term Facility”), and/or increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) days prior to this Agreement at the Stated Revolving Credit Termination Date option of the Borrower by written notice to an agreement in writing entered into by the Borrower, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(i) the principal amount of such 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 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.
(ii) no Default shall have occurred and be continuing, and no Default would exist after giving effect to any Incremental Facility, both on the date on which such Incremental Facility 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 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 ▇▇▇▇▇▇’s sole and absolute discretion;
(v) the borrower and guarantors for each Incremental Facility shall be the same as for the Revolving Facility and Term Facility, each Incremental Facility shall be secured by Liens in the Collateral that are parity with the Liens in the Collateral securing the Obligations and each Incremental Facility shall rank pari passu in right of payment with the Obligations;
(vi) each Incremental Facility shall be effective only upon receipt by the Administrative Agent of (A) additional commitments in respect of such requested Incremental Facility (each an “Incremental Facility Commitment”) from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees and (B) documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Agreement in form attached hereto as Exhibit G or in such other form and substance acceptable to the Administrative Agent;
(vii) the Administrative Agent shall have received:
(A) a “Commitment Amount Increase Request”) at least five (5) Business Days prior to certificate of the desired Borrower dated as of the effective date of such increase Incremental Facility signed by a Responsible Officer of the Borrower (1) certifying and attaching resolutions adopted by the “Commitment Amount Increase”) board of directors or equivalent governing body of the Borrower approving such Incremental Facility (i) an increase which may be the same resolutions as those delivered pursuant to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”Section 4.01(c)(ii), if such resolutions are deemed appropriate by an amount not in excess the Administrative Agent for purposes of $500,000,000 in approving the aggregate so that Incremental Facility and authorizing the aggregate Commitments are not in excess of $1,000,000,000 necessary actions incident thereto), and not less than $5,000,000 individually. Each (2) certifying that, before and after giving effect to such Commitment Amount Increase Request shall identify Incremental Facility, (x) the Business Day 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 (each an “Increased Amount Date”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 the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, case they shall be effectivetrue 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 identity incurrence of such Incremental Facility (and (1) assuming that the entire amount of such Incremental Facility is funded and (2) excluding the proceeds of such Incremental Facility from the cash netting in Consolidated Net Indebtedness for purposes of calculation of the Consolidated Senior Secured Leverage Ratio and the Consolidated Total Leverage Ratio) the Borrower is in compliance with the financial covenants in Section 7.11 on a Pro Forma Basis;
(C) such amendments to the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental 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 LenderLender (including each Person providing an Incremental Facility Commitment), or dated as of the effective date of such Incremental Facility; and
(E) such other Person that is 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 Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom Increase:
(A) the Borrower proposes any portion 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 Commitments or and Swing Line Loans to the Lenders providing such Incremental Term Loan CommitmentsRevolving Increase, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline make such adjustments to arrange the Register as are necessary, so that after giving effect to such Incremental Revolving Credit Commitments or Increase and such assignments and adjustments, each Lender (including the Lenders providing such Incremental Term Loan Commitments in Revolving Increase) will hold its sole discretion, and any Lender approached to provide all or a portion pro rata share (based on its Applicable Percentage of the Incremental increased Aggregate Revolving Commitments) of outstanding Revolving Loans and participation interests in Letters of Credit Commitments or Incremental Term Loan Commitments may elect or decline, and Swing Line Loans;
(ix) in its sole discretion, to provide an Incremental Revolving Credit Commitment or the case of an Incremental Term Loan Commitment. Any Facility structured as a separate term loan:
(A) the interest rate, interest rate margins, interest rate floors, fees, original issue discount, prepayment premiums, amortization, mandatory prepayments, “most favored nation” pricing protection and final maturity date for such Incremental Term Loans made on an Increased Amount Date Facility shall be designated a separate series identified as agreed by the year of Borrower and the Lenders providing such Incremental Term Facility; provided that:
(1) the final maturity of such Incremental Term Loans Facility shall not be earlier than the Maturity Date then applicable to the Term Loan;
(or month and year if there are multiple 2) the Weighted Average Life of such Incremental Term Loans maturing in Facility shall not be shorter than the same yearthen remaining Weighted Average Life of the Term Loan; and
(3) (each, a “Series”) prepayment requirements of such Incremental Term Loans Facility shall be customary for all purposes such type of this Agreement.term loan facilities (as determined by the Administrative Agent in its discretion);
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Incremental Facilities. (a) The Borrower may requeston one or more occasions after the Closing Date, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request:
(i) an increase to the then existing in any Revolving Credit Commitments (any such increaseeach, a “Revolving Commitment Increase” and the commitments in respect thereof, “Incremental Revolving Credit Commitments”) and/or ),
(ii) the establishment of one or more new term loan commitments of the same Class as any outstanding Term Loan (any such increaseeach, a “Term Loan Increase”), or
(iii) the addition of one or more new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments” and together with the Incremental Revolving Commitments, the “Incremental Commitments”; the loans made pursuant to such commitments, “Incremental Term Loans”; and the Incremental Term Facilities, together with the Revolving Commitment Increases and the Term Loan CommitmentsIncreases, the “Incremental Facilities”), by an amount not in excess of $500,000,000 in the aggregate so ; provided that the aggregate amount of all the Incremental Commitments are at any time shall not in excess exceed the Permitted Incremental Amount applicable to the Incremental Commitments at such time less the aggregate amount of $1,000,000,000 and not less than $5,000,000 individuallyIncremental Equivalent Indebtedness incurred pursuant to clause (w) of the definition of “Permitted Debt”. Each such Commitment Amount Increase Request notice shall identify specify (xi) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yii) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided the Incremental Commitments being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide such Incremental Commitment (and any such Lender that fails to respond to such approach shall be deemed to have declined to provide such Incremental Commitment, as the case may be) and (y) any Person that the Borrower proposes to become an Incremental Revolving Credit Commitment Lender, if such Person is not then a Lender, an Affiliate of a Lender or an Approved Fund must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent).
(b) The terms and conditions of the Incremental Commitments and the Incremental Loans to be made thereunder shall be set forth in an Incremental Facility Agreement; provided that, in any event,
(i) if the Weighted Average Yield applicable to any Incremental Term Loans issued on or prior to the date that is twelve (12) months after the Closing Date exceeds by more than 0.50% per annum the applicable Weighted Average Yield payable pursuant to the terms of this Agreement, as amended through the date of such calculation, with respect to Tranche B Term Loans, then the Applicable Margin then in effect for Tranche B Term Loans shall automatically be increased to a level such that the Weighted Average Yield with respect to the Tranche B Term Loans is 0.50% per annum below the Weighted Average Yield with respect to such Incremental Loans (other than a shorter Weighted Average Yield for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing that does not provide for a Weighted Average Yield that is shorter than the then-remaining Weighted Average Yield of the Tranche B Term Loans); provided, that, if any Incremental Term Loans or Incremental Revolving Loans, as applicable, include a Eurodollar or Alternate Base Rate floor that is greater than the Eurodollar or Alternate Base Rate floor applicable to any existing Class of Term Loans, such differential between interest rate floors shall be included in the calculation of Weighted Average Yield for purposes of this clause (i), but only to the extent an increase in the Eurodollar or Alternate Base Rate floor applicable to the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Eurodollar or Alternate Base Rate floors (but not the applicable rate) applicable to the existing Term Loans shall be increased to the extent of such differential between interest rate floors;
(ii) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Tranche B Term Loans (without giving effect to prior prepayments that would otherwise modify the weighted average life to maturity of the Tranche B Term Loans),
(iii) no Incremental Maturity Date of any Incremental Term Facility shall be earlier than the initial Tranche B Term Maturity Date (other than an earlier maturity date for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing the stated maturity of which shall be no earlier than the initial Tranche B Term Maturity Date);
(iv) (x) subject to clauses (ii) and (iii) above, the pricing, interest rate margins, discounts, premiums, rate floors, fees and the amortization schedule applicable to any Incremental Facility shall be determined by the Borrower and the Incremental Lenders and (y) all other terms of any Incremental Term Facility, if not consistent with the terms of the Tranche B Term Facility in any material respect, shall be reasonably satisfactory to the Administrative Agent (except for covenants and terms that apply solely to any period after the latest Maturity Date that is in effect on the effective date of such Incremental Facility Agreement) (it being understood that to the extent any financial maintenance covenant is added for the benefit of any Incremental Term Loans or any Incremental Term Commitments, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is also added for the benefit of any Tranche B Term Loans remaining outstanding after the effectiveness of such Incremental Facility Agreement);
(v) any Incremental 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 CommitmentDocuments shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case, on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects as of such prior date, (iii) after giving effect to such Incremental Commitments and the making of Incremental Loans and other extensions of credit thereunder to be made on the date of effectiveness thereof, the Borrower shall be in compliance with the Financial Covenants set forth in Section 6.12 with respect to the Fiscal Quarter of the Borrower most recently ended as of the date of effectiveness of such Incremental Commitments on a pro forma basis and (iv) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction.
(d) Notwithstanding the foregoing provisions of this Section 2.21 or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Acquisition, to the extent agreed by the applicable Lenders providing such Incremental Commitments, the conditions precedent to the Borrower’s right to request such Incremental Commitments for a Limited Condition Acquisition shall be limited to the following: (i) (x) on the date of execution of the definitive documentation with respect to such Limited Condition Acquisition, all the requirements set forth in clause (c)(i) and (ii) above shall be satisfied and (y) on the date of closing of such Limited Condition Acquisition and the funding of the applicable Incremental Loans, (A) no Event of Default under Section 7.01(b), (c), (g) or (h) shall have occurred and be continuing and (B) the only representations and warranties the accuracy of which shall be a condition to funding such Incremental Loans shall be the Specified Representations (conformed as necessary to apply to such Limited Condition Acquisition) and the Specified Acquisition Agreement Representations; provided that the Borrower will make all the representations and warranties set forth in Article III on the date of such closing and funding of such Limited Condition Acquisition, it being understood and agreed that only the representations and warranties set forth in clause (B) shall be conditions to funding of such Incremental Loans on such closing date; (ii) after giving effect to such Incremental Commitments and the making of Incremental 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 Commitments on a pro forma basis and (iii) the Borrower shall have delivered or caused to have been delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction.
(e) Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section, including, without limitation, any amendments and/or supplements to the documents delivered to satisfy the Collateral and Guarantee Requirement (including, without limitation, amendments to the Mortgages and datedown endorsements to the title policies) and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary to enable any Incremental Loans to be fungible for United States federal income tax purposes with another Class of Term Loans, which shall include any amendments that do not reduce the ratable amortization received by each Lender thereunder.
(f) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or 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 Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, each a “Series”) of Incremental Term Commitments and Incremental Loans for all purposes of this Agreement.
(g) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Commitment on the date specified in such Incremental Facility Agreement.
(h) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof.
(i) This Section 2.21 shall supersed
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Incremental Facilities. (a) The Borrower may requestmay, from time to at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any Business Day existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, 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, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) 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 incurred withinon any date after the First Amendment Effective Date that is on or prior to the day that is six months after the ClosingFirst Amendment Effective Date in an aggregate principal amount in excess of the greater of (x) $105,000,000 and (y) 0.75% of Consolidated Total Assets as of the last day of the most recently ended 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 Initial2019 New Term 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 sixty one year after the Initial Term Loan Maturity Date and (60D) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent is not incurred or established in the form attached hereto as Exhibit G connection with a Permitted Acquisition or in such any other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase Investment permitted hereby (the “Commitment Amount Increase”foregoing sub-clauses (A) through (i) an increase to the then existing Revolving Credit Commitments (any such increaseD), the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan CommitmentsMFN Conditions”), by an amount the Effective Yield applicable thereto may not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement.more than
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. The After the Second Restatement Date, the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of time add one or more new term loan commitments commitment tranches (each an “Incremental Term Commitment”, and any such increase, an “Incremental Term Facility”), and/or subsequently increase the then-existing Revolving Credit Commitments (each an “Incremental Revolving Credit Commitment” (and together with each Incremental Term Commitment, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each any such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (eachincrease, 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” or ) that agrees to provide a portion of such Incremental Facility (each an “Incremental Term 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 of the effective date of such Incremental Facility, no Specified Event of Default shall have occurred and 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 Lender”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:
(i) a certificate of each Loan Party dated as of the date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Facility, (1) subject to Section 1.07 with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition, the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such increase (or in the case of any such representations and warranties that contain a materiality or Material Adverse Effect qualification, shall be true and correct in all respects on and as of the date of sch increase), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (or in the case of any such representations and warranties that contain a materiality or Material Adverse Effect qualification, shall be true and correct in all respects on and as of such earlier date), and (2) subject to Section 1.07 (and pursuant to clause (b) above) with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition, no Default or Specified Event of Default, as applicable, exists;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(iii) opinions of legal counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender (including each Person providing a portion of an Incremental Facility), dated as of the effective date of such Incremental Facility; and
(iv) a Pro Forma Compliance Certificate demonstrating that after giving effect to whom the incurrence of such Incremental Facility on a Pro Forma Basis (and for purposes of the calculation under this clause (iv) assuming any Incremental Revolving Credit Facility is fully drawn) the Loan Parties would be in compliance with the financial covenants set forth in Section 7.11 recomputed as of the end of the period of the four fiscal quarters most recently ended for which the Borrower proposes has delivered financial statements pursuant to Section 6.01(a) or (b), but subject to Section 1.07 with respect to any Incremental Facility incurred in connection with a Limited Condition Acquisition;
(h) in the case of an Incremental Term Facility:
(i) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(A) the final maturity of such Incremental Term Facility shall not be earlier than the later of the latest maturity date set forth in the definition of “Maturity Date” and the latest maturity date of any previously incurred Term Loan under this Agreement;
(B) the Weighted Average Life to Maturity of such Incremental Term Facility shall not be shorter than the Weighted Average Life to Maturity of any previously incurred Term Loan; 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 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 shall be increased to an amount not to 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;
(ii) such Incremental Term Facility shall share ratably in any mandatory prepayments of the other term loans under this Agreement (or otherwise provide for more favorable prepayment treatment for the then outstanding term loans under this Agreement) and shall have ratable voting rights as the other term loans under this Agreement (or otherwise provide for more favorable voting rights for the then outstanding term loans under this Agreement); and
(i) in the case of the Incremental Revolving Credit Facility, the interest rate, interest rate margins, fees, discount, prepayment premiums, and final maturity date for the Incremental Revolving Credit Facility shall be as agreed by the Loan Parties and the Lenders providing the Incremental Revolving Credit Facility; provided, there shall be no scheduled commitment reductions applicable to such Incremental Revolving Credit Facility and the final maturity of such Incremental Revolving Credit Commitments or Incremental Term Loan CommitmentsFacility shall not be, as applicablein each case, be allocated earlier than the later of the Maturity Date and the amount latest maturity date of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of previously incurred term loan under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Incremental Facilities. The Borrower may request, (a) At any time and from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date Borrower may, by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable Agent, elect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) request an increase to the then existing Revolving Credit Facility Commitments (any each such increase, the an “Incremental Revolving Credit CommitmentsCommitment”) and/or (ii) in effect on the establishment Closing Date in an aggregate principal amount, collectively, not to exceed U.S.$300.0 million. Any Borrowing under an Incremental Commitment shall be in an aggregate amount that is an integral multiple of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 Borrowing Multiple and not less than $5,000,000 individuallyU.S.$10.0 million (the “Incremental Loans”). Each such Commitment Amount Increase Request Such notice shall identify specify the date (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effectivemade available, and which shall be a date not less than five (y5) 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, Lender or other Person that is financial institution (which in any event shall not be the Borrower, an Eligible Assignee Affiliate of the Borrower or a Defaulting Lender) reasonably acceptable to the Administrative Agent and the Issuing Banks (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be have been (in accordance with the prior sentence) allocated and the amount amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Such Incremental Term Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments and Incremental Loans; (ii) the representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date; (iii) the Incremental Loans shall rank pari passu in right of payment and of security with the Loans; (iv) such Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Administrative Agent and subject to the requirements set forth in Section 2.17(e); (v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments or any Incremental Loans and (vii) the terms and conditions of any Incremental Commitment and Incremental Loans (other than those terms relating directly to upfront fees or arrangement fees) shall be identical to those of the existing Revolving Facility Commitments and Revolving Facility Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments without the consent of any Lender. Notwithstanding the foregoing, the Borrower hereby agrees that the availability of Incremental Commitments shall be subject to the prior satisfaction of the following conditions: (x) each Loan Party shall have obtained all material consents necessary in connection with such Incremental Commitments; and (y) the Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the applicable Increased Amount Date, favorable written opinions of counsel for the Loan Parties, (A) dated the applicable Increased Amount Date, (B) addressed to each Issuing Bank on the applicable Increased Amount Date, the Administrative Agent, the Collateral Agent and the Lenders, and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Incremental Commitments and the Incremental Loans as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions.
(b) On any Increased Amount Date on which Incremental Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the outstanding Revolving Facility Loans and participations in Revolving Letters of Credit outstanding on such Increased Amount Date that will result in, after giving effect to all such assignments and purchases, such Revolving Facility Loans and participations in Revolving Letters of Credit being held by existing Lenders and Incremental Lenders ratably in accordance with their Revolving Facility Commitments after giving effect to the addition of such Incremental Commitments to the Revolving Facility Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Revolving Facility Commitment and each Loan made on thereunder shall be deemed, for all purposes, a Revolving Facility Loan and have the same terms as any existing Revolving Facility Loan and (iii) each Incremental Lender shall become a Lender with respect to the Revolving Facility Commitments and all matters relating thereto, in each case, without the consent of any other Lender.
(c) A portion of the Incremental Commitment may be made available for the issuance of Revolving Letters of Credit in an amount not exceeding the proportional amount of the Revolving L/C Sublimit to the aggregate amount of the Revolving Facility Commitments as of such date.
(d) The Incremental Loans shall be used solely for working capital, capital expenditures and other lawful purposes (including the payment of transaction fees and expenses and for the issuance of Revolving Letters of Credit).
(e) All Incremental Loans will be made in accordance with the procedures set forth in Section 2.03.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of an Increased Amount Date and, in respect thereof, the Incremental Commitments and the Incremental Lenders.
(g) As a condition precedent to the Borrower’s incurrence of additional Indebtedness pursuant to this Section 2.20, (i) the Borrower shall, and shall be designated a separate series identified cause each Loan Party to, enter into, and deliver to the Administrative Agent and the Collateral Agent, reaffirmations of the guarantees and the security interests and Liens granted by the year Loan Parties under the Security Documents in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent and (ii) with respect to any Mortgaged Property, the Borrower shall, and shall cause each Loan Party to, enter into, and deliver to the Administrative Agent and the Collateral Agent, upon the reasonable request of maturity of such Incremental Term Loans the Administrative Agent and/or the Collateral Agent (x) mortgage modifications or month and year if there are multiple Incremental Term Loans maturing new Mortgages with respect to any Mortgaged Property in each case in proper form for recording in the same yearrelevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent and (y) (each, a “Series”) all other items reasonably requested by the Collateral Agent that are reasonably necessary to maintain the continuing perfection or priority of Incremental Term Loans the Lien of the Mortgages as security for all purposes of this Agreementsuch Obligations.
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may request, from time to timetime agree that such Lenders shall make, on any Business Day prior to obtain or increase the date that is sixty amount of their Term Loans (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increaseincreased amount, the “Incremental Term Loan CommitmentsLoans”), by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount not in excess of $500,000,000 in such increase and the aggregate so that Facility involved, (ii) the aggregate Commitments are not in excess of $1,000,000,000 applicable Increased Facility Closing Date and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (iii) (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or applicable Incremental Term Loan CommitmentsMaturity Date, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “amortization schedule for such Incremental Term Loan Lender”Loans, as applicablewhich shall comply with Section 2.3(b), to whom and (z) the Borrower proposes any portion of Applicable Margin for such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocationsLoans,); provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or (A) the final maturity date of any Incremental Term Loan Commitments in its sole discretionLoans shall be no earlier than the Tranche B Maturity Date, and any Lender approached (B) the average life to provide all or a portion maturity of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or declineLoans shall be no shorter than the remaining average life to maturity of the Tranche B Term Loans, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any and (C) if the total yield (calculated for both the Incremental Term Loans made and the Tranche B Term Loans, including the upfront fees, any interest rate floors and any OID (as defined below but excluding any arrangement, underwriting or similar fee paid by the Borrower)) in respect of any Incremental Term Loans exceeds by more than 0.50% the total yield for the existing Tranche B Term 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 Increased Amount Date assumed four-year life to maturity), the Applicable Margin for the Tranche B Term Loans shall be designated a separate series identified by increased so that the year of maturity total yield in respect of such Incremental Term Loans is no more than 0.50% higher than the total yield for the existing Tranche B Term Loans. Notwithstanding the foregoing, (or month and year if there are multiple i) the aggregate amount of borrowings of Incremental Term Loans maturing shall not exceed $50,000,000, provided that, the aggregate amount of such borrowings of Incremental Term Loans shall not exceed $35,000,000 without consent of the Required Lenders and (ii) without the consent of the Administrative Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of at least $5,000,000. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the same yearconsent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.18(a) shall execute a New Lender Supplement (each, a “SeriesNew Lender Supplement”), substantially in the form of Exhibit G-2, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Notwithstanding the foregoing, no Incremental Term Loan shall become effective unless (i) on the date of such effectiveness (A) the representations and warranties set forth in Article 3 and in each other Loan Document shall be true and correct in all material respects as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (B) at the time of and immediately after giving effect to such Incremental Term Loan, no Default or Event of Default shall have occurred and be continuing, (C) after giving effect to the making of any Incremental Term Loan and the use of proceeds thereof, (ii) the Borrower shall be in compliance with the financial covenants set forth in Section 6.1 on a pro forma basis, recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available, (y) the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (iii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and reaffirmation agreements reasonably requested by the Administrative Agent.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of Incremental Term Loans for all purposes evidenced thereby; provided that, to the extent such terms and documentation of this Agreementthe Incremental Term Loans are more favorable to the Lenders of such Incremental Term Loans than the existing Tranche B Term Loan Facility (except to the extent permitted by Section 2.18(a)), such terms and documentation shall be reasonably satisfactory to the Administrative Agent and Required Lenders. Any such amendment may be effected in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
Appears in 1 contract
Incremental Facilities. The (a) So long as no Event of Default exists or would arise therefrom, the Borrower may requestshall have the right, at any time and from time to time, on any Business Day prior time after the Closing Date to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of request new term loan commitments under one or more new term loan commitments credit facilities to be included in this Agreement and/or increase the principal amount of any Class of Term Loans (any such increaseeach, an “Incremental Term Facility” and, collectively, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in ) and/or (ii) increase the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Total Revolving Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan LenderFacility” or an and, such commitments, the “Incremental Term Loan Lender”Revolving Commitments” and, as applicable), to whom together with the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicablethe “Incremental Commitments” and, be allocated together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) so long as the aggregate outstanding principal amount of such allocationsall unutilized Incremental Commitments and Incremental Loans does not exceed the Incremental Amount; provided that that, after giving pro forma effect to any Incurrence or discharge of Indebtedness on the date the applicable Incremental Commitment Agreement becomes effective (subject to Section 1.3) and all related transactions as if completed on the first day of the twelve (12)-month period ending on the most recent Test Date, the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required on the Test Date) (and the Borrower shall deliver a certificate, on or prior to the date on which such Incremental Commitment shall become effective to the Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments certifying that the Borrower is in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitmentcompliance with this Section 4.17). Any Incremental Term Loan Commitment Incurred in the form of increases to any Class of existing Term Loans made on an Increased Amount Date shall be designated a separate series identified by identical to (other than (x) with respect to “original issue discount” or upfront fees and (y) any increase to the year scheduled amortization payments applicable to any Class of maturity of Term Loans necessary to make such Incremental Term Loans Loan fungible with any Class of existing Term Loans) and form part of such Term Loans. Any Incremental Revolving Commitments shall be Incurred in the form of increases to the Revolving Commitments and shall be identical to (other than with respect to upfront fees) and form part of such Revolving Facility.
(b) Each request from the Borrower pursuant to this Section 4.17 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or month any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”) subject, (i) in respect of any Additional Lender not already a Lender hereunder or an affiliate of a Lender hereunder, to the Borrower’s consent (such consent not to be unreasonably withheld or delayed) and year if there are multiple Incremental Term Loans maturing (ii) in the same yearcase of any Incremental Revolving Commitments (if such Additional Lender is not already a Lender hereunder or any affiliate of a Lender hereunder) to the consent of the Administrative Agent (each, a “Series”) such consent not to be unreasonably withheld or delayed). Any allocation of any Incremental Term Loans for all purposes Commitments to any Affiliated Lender shall be subject to the terms of this AgreementSection 11.6(g).
Appears in 1 contract
Sources: Credit Agreement (OPENLANE, Inc.)
Incremental Facilities. (a) The Lead Borrower may requestmay, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the Aggregate Incremental Amount does not exceed the Incremental Cap (or, in the form attached hereto as Exhibit G or case of Incremental Commitments in such other form acceptable connection with a Limited Condition Acquisition incurred pursuant to clause (y) of the definition thereof, at the election of the Borrower, the Aggregate Incremental Amount, after giving effect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to Incremental Commitments, does not exceed the desired effective Incremental Cap on the date of the definitive acquisition agreement for such increase (the “Commitment Amount Increase”) Limited Condition Acquisition is entered into). Such notice shall set forth (i) an increase to the then existing Revolving Credit amount of the Incremental Commitments being requested (any such increasewhich shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of one such notice (or more new term loan commitments such shorter periods as the Administrative Agent shall agree)) and (any iii) whether such increase, the “Incremental Commitments are Incremental Revolving Commitments or Incremental Term Loan Commitments”. The Lead Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender.
(b) It shall be a condition precedent to the effectiveness of any Incremental Commitment and the incurrence of any Incremental Term Loans that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitment or the incurrence of such the Incremental Term Loans, as applicable (or, in the case of Incremental Commitments or Incremental Loans in connection with a Limited Condition Acquisition, no Default or Event of Default exists as of the date the definitive acquisition agreement for such Limited Condition Acquisition is entered into), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (ii) (x) the Business Day Parent is in compliance with the Financial Covenants, determined as of the fiscal quarter of the Parent most recently ended for which financial statements have been delivered pursuant to Section 7.01 and on an Incremental Pro Forma Basis or (each an “Increased Amount Date”y) on which in the Borrower proposes that the case of Incremental Revolving Credit Commitments or Incremental Term Loan CommitmentsLoans in connection with a Limited Condition Acquisition, the Parent is in compliance with the Financial Covenants as herein provided on the date the definitive acquisition agreement for such Limited Condition Acquisition is entered into, determined on a Pro Forma Basis as of such date, (iii) in the case of Incremental Commitments or Incremental Loans in connection with a Limited Condition Acquisition, solely to the extent required by the lenders providing such Incremental Commitments or Incremental Loans, as applicable, shall be effective, the representations and warranties set forth in Article 6 and in each other held by each Revolving Credit Lender (y) the identity of including each Lender, or other Person that is an Eligible Assignee (each, an “such Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”) will equal its Aggregate Commitment Percentage. If, as applicable)on the date of such increase, to whom there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall upon the Borrower proposes any portion effectiveness of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, Commitment be allocated and prepaid from the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion proceeds of the Incremental Revolving Credit Loans made hereunder so that Revolving Credit Loans are thereafter held by the Revolving Credit Lenders according to their Aggregate Commitment Percentage (after giving effect to the 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 Revolving Credit Lender in accordance with Section 3.05. 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. For the avoidance of doubt, it is acknowledged and agreed that Section 5.02 hereof shall not be applicable to the incurrence of Incremental Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, Loans pursuant to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this AgreementSection 2.18 hereof.
Appears in 1 contract
Sources: Credit Agreement (Tempur Sealy International, Inc.)
Incremental Facilities. (a) The Borrower may requestBorrowers may, from time to timetime after the Closing Date, on any Business Day prior upon notice by the Borrowers to the date that is sixty Person appointed by the Borrowers to arrange an incremental Facility (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent Person (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) who (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person (other than an increase to Affiliate of any Borrower) appointed by the then existing Revolving Credit Commitments (Borrowers after consultation with the Administrative Agent; provided that such Person may not be an Affiliate of any such increaseBorrower), the “Incremental Arranger”) specifying the proposed amount thereof, request an increase in the aggregate Commitments (which shall be on the same terms as, and become part of, the Commitments) (a “Revolving Credit CommitmentsCommitment Increase”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not to exceed $50,000,000 (the “Available Incremental Amount”); provided that any such request for an increase shall be in excess a minimum amount of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess lesser of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, $5,000,000 and (y) the identity entire amount of each Lenderany increase that may be requested under this Section 2.14. The Borrowers may designate any Incremental Arranger of any Revolving Credit Commitment Increase, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of if such Incremental Arranger is not the Administrative Agent, with such titles under the Revolving Credit Commitments or Incremental Term Loan Commitments, Commitment Increase as applicable, be allocated and the amount of such allocations; provided that Administrative Agent Borrowers may elect or decline deem appropriate. No Lender shall have any obligation whatsoever to arrange such Incremental provide any Revolving Credit Commitments or Incremental Term Loan Commitments Commitment Increase and may reject any such request in its sole discretion.
(b) The Borrowers may also invite additional Eligible Assignees reasonably satisfactory to the Incremental Arranger and with the consent of the Administrative Agent, the Swingline Lender and each L/C Issuer (to the extent the consent of any of the foregoing would be required to assign Revolving Credit Loans to such Eligible Assignee, which consent shall not be unreasonably withheld or delayed) to become Lenders pursuant to a joinder agreement to this Agreement. Neither the Administrative Agent nor the Collateral Agent (in their respective capacities as such) shall be required to execute, accept or acknowledge any joinder agreement pursuant to this Section 2.14 and such execution shall not be required for any such joinder agreement to be effective; provided that, with respect to any Revolving Credit Commitment Increase, the Borrowers must provide to the Administrative Agent the documentation providing for such Revolving Credit Commitment Increase.
(c) If the aggregate Commitments are increased in accordance with this Section 2.14, the Administrative Agent and the Borrowers shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase among the applicable Lenders. The Incremental Arranger shall promptly notify the applicable Lenders of the final allocation of such increase and the Increase Effective Date. In connection with any increase in the aggregate Commitments pursuant to this Section 2.14, this Agreement and the other Loan Documents may be amended in a writing (which may be executed and delivered by the Borrowers and the Administrative Agent (and the Lenders hereby authorize the Administrative Agent to execute and deliver any such documentation)) in order to effectuate such increases to the Commitments and to reflect any technical changes necessary or appropriate to give effect to such increase in accordance with its terms as set forth herein.
(d) With respect to any Revolving Credit Commitment Increase pursuant to this Section 2.14, (i) no Event of Default (subject to Section 1.02(i)) would exist after giving effect to such increase; (ii) the terms of such Revolving Credit Commitment Increase (including the Applicable Rate) shall be documented solely as an increase to the Commitments, with identical terms; (iii) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received legal opinions, resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 or delivered from time to time pursuant to Section 6.12, Section 6.14 and/or Section 6.16 with respect to Holdings and the Borrowers and each material Subsidiary Guarantor that is organized in a jurisdiction for which counsel to the Administrative Agent advises that such deliveries are reasonably necessary to preserve the Collateral in such jurisdiction (other than changes to such legal opinions resulting from a change in Law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Incremental Arranger). Subject to the foregoing, the conditions precedent to each such increase shall be agreed to by the Lenders providing such increase and the Borrowers.
(e) On the Increase Effective Date with respect to any Revolving Credit Commitment Increase, (x) each Revolving Credit Lender approached immediately prior to provide all or such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental increase to the Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “SeriesRevolving Commitment Increase Lender”), and, if applicable, each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Swingline Loans and L/C Obligations relating to Letters of Credit issued such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Swingline Loans and L/C Obligations will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the Increase Effective Date be prepaid from the proceeds of Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.06. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) If the Incremental Term Loans for all purposes Arranger is not the Administrative Agent, the actions authorized to be taken by the Incremental Arranger herein shall be done in consultation with the Administrative Agent and, with respect to the preparation of any documentation necessary or appropriate to carry out the provisions of this AgreementSection 2.14 (including amendments to this Agreement and the other Loan Documents), any comments to such documentation reasonably requested by the Administrative Agent shall be reflected therein.
(g) Each of the parties hereto acknowledges and agrees that, if there are any Mortgaged Properties, any increase, extension or renewal of any of the Revolving Credit Commitments or Revolving Credit Loans (but excluding (i) any continuation or conversion of borrowings, (ii) the making of any Revolving Credit Loans or (iii) the issuance, renewal or extension of Letters of Credit) shall be subject to (and conditioned upon): (1) the prior delivery of all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to such Mortgaged Properties as required by Flood Insurance Laws and as otherwise reasonably required by the Administrative Agent and (2) receipt by the Administrative Agent of written confirmation from the Lenders that flood insurance due diligence and flood insurance compliance has been completed by the Lenders (such written confirmation not to be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Sources: Abl Credit Agreement (V2X, Inc.)
Incremental Facilities. The Borrower may request, (i) At any time during the period from time to time, on any Business Day prior to and after the Closing Date through but excluding the date that is sixty the Maturity Date, Borrowers may request (60) days prior subject to the Stated Revolving Credit Termination Date conditions set forth in clause (ii) below and in Administrative Agent’s sole discretion), that the Revolver Commitments and the Maximum Revolver Amount be increased by written notice to the Administrative Agent an amount in the form attached hereto as Exhibit G or in aggregate for all such other form acceptable increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Administrative Agent Available Increase Amount (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any each such increase, an “Increase”); provided, that in no event shall the “Incremental Revolving Credit Revolver Commitments and the Maximum Revolver Amount be increased by an amount in excess of the Available Revolver Increase Amount. Administrative Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments”) and/or in connection with a proposed Increase, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Administrative Agent may invite any prospective lender who is reasonably satisfactory to Administrative Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $1,000,000 and integral multiples of $100,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.01(c) on more than three (3) occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolver Commitments exceed $5,000,000.
(ii) Each of the establishment following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(A) Administrative Agent has obtained the commitment of one or more new term loan commitments Lenders (or other prospective lenders) satisfactory to Administrative Agent to provide the applicable Increase and any such increaseLenders (or prospective lenders), the Borrowers, and Administrative Agent have signed a joinder agreement to this Agreement (an “Incremental Term Loan CommitmentsIncrease Joinder”), by an in form and substance reasonably satisfactory to Administrative Agent, to which such Lenders (or prospective lenders), Borrowers, and Administrative Agent are party;
(B) each of the conditions precedent set forth in Section 4.02 are satisfied; and
(C) Borrowers have delivered to Administrative Agent updated pro forma projections (after giving effect to the applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 6.13 for the twelve (12) Fiscal Months (on a Fiscal Month-by-Fiscal Month basis) immediately following the proposed date of the applicable Increase.
(iii) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolver Loans shall be deemed, unless the context otherwise requires, to include Revolver Loans made pursuant to the increased Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.01(c).
(iv) Each of the Lenders having a Revolver Commitment prior to the Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount not in excess of $500,000,000 thereof, such interests in the aggregate so Revolver Loans and participation interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolver Loans and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments.
(v) The Revolver Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.01(c) shall constitute Revolver Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the aggregate Commitments are not in excess of $1,000,000,000 Liens and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified security interests granted by the year Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of maturity of any such Incremental Term Loans (or month new Revolver Commitments and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this AgreementMaximum Revolver Amount.
Appears in 1 contract
Sources: Loan and Security Agreement (Lulu's Fashion Lounge Holdings, Inc.)
Incremental Facilities. The (a) At any time during the period commencing on the Effective Date and ending on the third anniversary of the Effective Date, at the option of Borrower (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 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 exceed $150,000,000.
(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 (or other prospective lenders) reasonably satisfactory to Administrative Agent and Borrower to provide the applicable Increase and any such Lenders (or prospective lenders), Borrower, and Administrative Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Administrative Agent, to which such Lenders (or prospective lenders), Borrower, and 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 Administrative Agent an updated Form U-1 (with 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, from time in order to timeenable Administrative Agent and the Lenders to comply with any of the requirements under Regulations T, on any Business Day 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 that is sixty of the increased Commitments (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to effectiveness of the then existing Revolving Credit Commitments (any such increaseincreased Commitments, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan CommitmentsIncrease Date”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 ) and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and have communicated the amount of such allocations; provided that interest margins to Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan CommitmentAgent. Any Incremental Term Loans Increase Joinder may, with the consent of Administrative Agent, Borrower and the Lenders or prospective 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 (including any amendment necessary to effectuate the interest margins for the Advances to be made on an Increased Amount pursuant to the increased Commitments). Anything to the contrary contained herein notwithstanding, if the interest margins (including floors) that is to be applicable to the Advances to be made pursuant to the increased Commitments is higher than the interest margins (including floors) applicable to the Advances immediately prior to the applicable Increase Date (the amount by which such margin is higher, the “Excess”), then the interest margin applicable to the Advances immediately prior to the Increase Date shall be designated a separate series identified increased by the year amount of maturity the Excess, effective on the applicable Increase Date, and without the necessity of any action by any party hereto.
(c) Unless otherwise specifically provided herein, all references in this Agreement and any other Credit Document to Advances shall be deemed, unless the context otherwise requires, to include Advances made pursuant to the increased Commitments pursuant to this Section 2.19.
(d) Each of the Lenders having a Commitment prior to the 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 Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the same yearAdvances and participation interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Applicable Percentage after giving effect to such increased Commitments.
(e) (eachThe Advances and Commitments established pursuant to this Section 2.19 shall constitute Advances and Commitments under, a “Series”) and shall be entitled to all the benefits afforded by, this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from 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 establishment of Incremental Term Loans for all purposes of this Agreementany such new Commitments.
Appears in 1 contract
Incremental Facilities. The (a) So long as no Event of Default exists or would arise therefrom, the Borrower may request(or, solely in respect of an Incremental Revolving Facility that increases the Total 2024 Canadian Revolving Facility Commitments, the Canadian Borrower) shall have the right, at any time and from time to time, on any Business Day prior time after the Closing Date to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of request new term loan commitments under one or more new term loan commitments credit facilities to be included in this Agreement and/or increase the principal amount of any Class of Term Loans (any such increaseeach, an “Incremental Term Facility” and, collectively, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 (ii) increase the Total Closing Date Revolving Facility Commitments and/or (iii) increase the Total 2024 Canadian Revolving Facility Commitments (each increase described in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 foregoing clauses (ii) and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each iii), an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Facility” and, such commitments, the “Incremental Revolving Facility Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Facility Loans” and, together with any Incremental Term Loans, “Incremental Loans”) so long as applicablethe aggregate outstanding principal amount of all unutilized Incremental Commitments and Incremental Loans established or incurred after the Second Amendment Effective Date does not exceed the Incremental Amount; provided that, (A) after giving pro forma effect to any Incurrence or discharge of Indebtedness on the date the applicable Incremental Commitment Agreement becomes effective (subject to Section 1.3) and all related transactions as if completed on the first day of the twelve (12)-month period ending on the most recent Test Date, the Borrower would have been in compliance with Section 8.1 on the Test Date (assuming compliance with Section 8.1 was required on the Test Date) (and the Borrower shall deliver a certificate, on or prior to the date on which such Incremental Commitment shall become effective to the Administrative Agent certifying that the Borrower is in compliance with this Section 4.17) and (B) the aggregate principal amount of all Incremental Revolving Facilities incurred in the form of an increase of the Total 2024 Canadian Revolving Facility Commitments shall not exceed C$75,000,000. Any Incremental Term Loan Commitment Incurred in the form of increases to any Class of existing Term Loans shall be effective, identical to (other than (x) with respect to “original issue discount” or upfront fees and (y) any increase to the identity scheduled amortization payments applicable to any Class of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Term Loans necessary to make such Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes fungible with any portion Class of existing Term Loans) and form part of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan CommitmentLoans. Any Incremental Term Loans made on an Increased Amount Closing Date Revolving Facility Commitments shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing Incurred in the same yearform of increases to the Closing Date Revolving Facility Commitments and shall be identical to (other than with respect to upfront fees) and form part of the Closing Date Revolving Facility. Any Incremental 2024 Canadian Revolving Facility Commitments shall be Incurred in the form of increases to the 2024 Canadian Revolving Facility Commitments and shall be identical to (each, a “Series”other than with respect to upfront fees) and form part of Incremental Term Loans for all purposes of this Agreementthe 2024 Canadian Revolving Facility.
Appears in 1 contract
Incremental Facilities. The (a) Other than during the Basket Suspension Period, theThe Borrower may request, from time to time, on any Business Day (A) prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date of any Class, increase the aggregate outstanding amount of the existing Revolving Credit Commitments of such Class (any such increase, the “New Revolving Credit Commitments” and the revolving loans made thereunder, the “New Revolving Loans”) and/or (B) increase the aggregate outstanding principal amount of the Term Loans of any Class and/or establish one or more Classes of new term loan commitments (any such increase or new term loan commitment, the “New Term Loan Commitments” and the term loans made thereunder, the “New Term Loans”), in each case by written notice to the Administrative Agent delivering a Commitment Amount Increase Notice (a “Commitment Amount Increase Notice”) substantially in the form attached hereto as Exhibit G H or in such other form reasonably acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five three (53) Business Days prior to the desired stated effective date, unless the Administrative Agent shall have determined in its sole discretion to accept such Commitment Amount Increase Notice on such effective date of (the “Increased Amount Date”) such increase or new commitment (the “Commitment Amount Increase”) identifying (i) an increase any existing Lenders and/or any new lender(s) (each, a “New Revolving Lender” or “New Term Lender,” as applicable), subject, in the case of New Revolving Lenders and New Term Lenders, to the reasonable consent of the Administrative Agent (and in the case of any New Revolving Lenders, the Swing Line Lender and L/C Issuer) to the extent such consent would be required under Section 13.12 in respect of an assignment hereunder and (ii) the amount of such Lender’s New Revolving Credit Commitment or New Term Loan Commitments and in the case of New Term Loans that are part of an existing Class of Term Loans, identifying such existing Class of Term Loans; provided, however, that:
(i) any Commitment Amount Increase shall be in an amount not less than $5,000,000 (or such lesser amount which shall be approved by the Administrative Agent or represents all remaining availability under the limit set forth in this clause (i)) and in the aggregate for all such increases not greater than (A) $150,000,00050,000,000 (less the aggregate amount outstanding of Incremental Equivalent Debt incurred pursuant to clause (iA)(x) of the proviso to Section 8.7(o)), but any Commitment Amount Increase pursuant to this clause (A) shall only be permitted if, after giving effect thereto, the Secured Leverage Ratio (assuming, for this purpose, that all Revolving Credit Commitments are fully drawn) does not exceed 3.50:1.00, calculated on a Pro Forma Basis (which (i) if in connection with an Acquisition, shall be calculated as of the last day of the most recent fiscal quarter for which financial statements are available on or prior to the date of the definitive documentation for such Acquisition (or, if earlier, the applicable Increased Amount Date), (ii) shall assume that all debt incurred pursuant to this Section 1.16 and clause (A)(y) of the proviso to Section 8.7(o) is secured on a pari passu basis with the Credit Facilities and, if consisting of revolving commitments, is fully drawn, and (iii) shall exclude from the “net debt” portion of such pro forma calculation the cash proceeds from the borrowing of the Commitment Amount Increase), plus (B) in the case of any Commitment Amount Increase that effectively extends the Revolving Credit Termination Date or any maturity date with respect to any Class of Loans or commitments hereunder, an amount equal to the prepayment to be made with respect to any Term Loans and/or the permanent commitment reduction to be made with respect to the Revolving Credit Facility, in each case to be replaced with such Commitment Amount Increase, plus (C) additional amounts in U.S. Dollars so long as, after giving effect to such additional amounts, the Secured Leverage Ratio (assuming, for this purpose, that all Revolving Credit Commitments are fully drawn) does not exceed 2.75:1.00, calculated on a Pro Forma Basis (which (i) if in connection with an Acquisition, shall be calculated as of the last day of the most recent fiscal quarter for which financial statements are available on or prior to the date of the definitive documentation for such Acquisition (or, if earlier, the applicable Increased Amount Date), (ii) shall assume that all debt incurred pursuant to this Section 1.16 and clause (iA)(y) of the proviso to Section 8.7(o) is secured on a pari passu basis with the Credit Facilities and, if consisting of revolving commitments, is fully drawn, and (iii) shall exclude from the “net debt” portion of such pro forma calculation the cash proceeds from the borrowing of the Commitment Amount Increase) (with the Borrower to select, on the date such Commitment Amount Increase is obtained, utilization under clauses (A), (B) or (C) in its sole discretion),
(ii) except in connection with an Acquisition or other investment permitted hereunder on the applicable Increased Amount Date (in which case, Section 1.16(g) shall be applicable), (x) no Default or Event of Default shall have occurred and be continuing on the Increased Amount Date (both prior to and after giving effect to such Commitment Amount Increase) and (y) each of the representations and warranties set forth herein and in the other Loan Documents shall be true and correct in all material respects (or in all respects if otherwise qualified by “material” or “material adverse effect”) as of said time, except to the extent the same expressly relate to an earlier date (in which case, such representation and warranty shall be true and correct in all material respects as of such earlier date),
(iii) with respect to any Commitment Amount Increase in respect of New Revolving Credit Commitments, the New Revolving Credit Commitments material terms shall have all of the same terms and conditions as such existing Revolving Credit Commitments,
(iv) New Term Loans borrowed hereunder may be part of an existing Class of Term Loans, in which case such New Term Loans shall have all of the same terms and conditions as such existing Term Loans, or may constitute a new Class of Term Loans, in which case such New Term Loans shall have such terms and conditions as the Borrower and the applicable New Term Lenders shall agree (and which are satisfactory to the Administrative Agent (it being understood that terms not substantially consistent with the then-existing applicable Class of Term Loans which are applicable only after the maturity and payment in full of such Term Loans are acceptable to the Administrative Agent)); provided that:
(A) the applicable maturity date of any such New Term Loans shall be no earlier than the final maturity date of the then outstanding Term Loans,
(B) the Weighted Average Life to Maturity of all New Term Loans shall be no shorter than the Weighted Average Life to Maturity of the existing Term Loans,
(C) the interest rate applicable to the New Term Loans shall be determined by the Borrower and the applicable New Term Lenders; provided, however, that the interest rate (as determined by the Administrative Agent in accordance with this clause (C) and in consultation with the Borrower) applicable to any such New Term Loans shall not be greater than 50 basis points above the applicable interest rate (including the Applicable Margin) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to any existing Term Loans unless the interest rate applicable to the existing Term Loans is increased (which increase shall not require the consent of any Lender or the Borrower) to the extent necessary so that the interest rate applicable to such New Term Loans is no greater than 50 basis points above the interest rates of the existing Term Loans; provided that in determining the applicable interest rate: (x) margins as well as all upfront and similar fees and original issue discount paid in the primary syndication of the Commitment Amount Increase or the existing Term Loans (based on an assumed four year average life to maturity for the applicable facilities), and any amendments to the Applicable Margin under this Agreement that became effective subsequent to the Closing Date but prior to the time of such Commitment Amount Increase shall be included in such calculation, (y) arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their affiliates) in its capacity as such in connection with any of the existing Term Loans or to one or more arrangers (or their affiliates) in their capacities as applicable to any Commitment Amount Increase shall be excluded from such calculation and (z) if the New Term Loans include an interest rate floor greater than that applicable to the existing Term Loans or Revolving Credit Commitments, such excess amount shall be equated to interest margin for determining the increase, and
(D) the New Term Loans shall share ratably in any prepayments of the existing Term Loans unless the Borrower and the Lenders in respect of the New Term Loans elect lesser payments; and
(v) the New Revolving Credit Commitments and/or New Term Loan Commitments will rank pari passu in right of payment and pari passu with respect to Liens on any Collateral with the existing Revolving Credit Commitments or existing Term Loans.
(any such increase, the “Incremental Revolving Credit Commitments”b) and/or (ii) Any New Term Loans effected through the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess series of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year Class of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(c) On any Increased Amount Date on which New Term Loans are made that constitute an increase to an existing Class of Term Loans (with all of the same terms and conditions as such existing Class of Term Loans), subject to the satisfaction of the foregoing terms and conditions, (i) each applicable existing Term Loan Lender and New Term Lender of such Class shall make a New Term Loan to the Borrower in an amount equal to its New Term Loan Commitment of such Class (it being understood that any New Term Loan Facility may provide for delayed draw term loans to be made on a date after the Increased Amount Date), (ii) any New Term Loan made by an existing Term Loan Lender and/or a New Term Lender pursuant to a Commitment Amount Increase shall be deemed a “Term Loan” for all purposes of this Agreement and (iii) each New Term Lender with a New Term Loan shall become a Lender with respect to such Class of New Term Loans and New Term Loan Facility and all matters relating thereto.
(d) On any Increased Amount Date (or such later date as shall be applicable to any delayed draw Term Loan) on which any New Term Loans are made that constitute a new Class of Term Loans, subject to the satisfaction of the foregoing terms and conditions, (i) each applicable existing Term Loan Lender and New Term Lender of such Class shall make a New Term Loan to the Borrower in an amount equal to its New Term Loan Commitment (or, in the case of any delayed draw Term Loan, relevant portion thereof) of such Class, (ii) any New Term Loan of such Class made by an existing Term Loan Lender and/or a New Term Lender pursuant to a Commitment Amount Increase shall be deemed a “Term Loan” made pursuant to a separate Class of Term Credit Facility for all purposes of this Agreement and (iii) each New Term Lender with a New Term Loan shall become a Lender with respect to such Class of New Term Loans and New Term Loan Facility and all matters relating thereto.
(e) On any Increased Amount Date on which any New Revolving Credit Commitments are effected as an increase to one or more existing Classes of Revolving Credit Commitments, subject to the satisfaction of the foregoing terms and conditions, (i) at such time and in such manner as the Borrower and the Administrative Agent shall agree, each of the existing Revolving Lender’s shall assign to each New Revolving Lender, and each New Revolving Lender shall purchase from each of the existing Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans of such Class outstanding on the date of such Increased Amount Date as shall be necessary such that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Lenders ratably in accordance with their Revolving Credit Commitments of such Class after giving effect to such Commitment Amount Increase, (ii) each New Revolving Credit Commitment obtained by a Revolving Lender pursuant to a Commitment Amount Increase shall be deemed for all purposes a Revolving Credit Commitment of such Class and each Loan made thereunder shall be deemed, for all purposes of this Agreement, a “Revolving Loan” and (iii) each Lender with a New Revolving Credit Commitment shall become a Lender with respect to such Class of New Revolving Credit Commitment and all matters relating thereto.
(f) The Borrower agrees to pay the reasonable documented out-of-pocket expenses of the Administrative Agent relating to any Commitment Amount Increase. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to increase its Revolving Credit Commitment or advance New Term Loans and no Lender’s Revolving Credit Commitment shall be increased without its consent thereto, and each Lender may at its option, unconditionally and without cause, decline to increase its Revolving Credit Commitment or advance New Term Loans. Each Commitment Amount Increase Notice entered into in connection with any Commitment Amount Increase may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 1.16 and, for the avoidance of doubt, this Section 1.16 shall supersede any provisions of this Agreement (including, without limitation, Section 1.3, Section 1.9, Section 1.15, Section 3, Section 13.7 and Section 13.13) or any other Loan Document that may otherwise prohibit or conflict with any New Revolving Credit Commitment, New Term Loan Commitments or other increases in Term Loans or Revolving Credit Commitments as contemplated by this Section.
(g) Notwithstanding anything to the contrary in this Agreement or any other provision of any Loan Document, if the proceeds of any New Term Loans are intended to be applied to finance an Acquisition or other investment permitted hereunder (x) with the consent of the Lenders providing such New Term Loans, the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality, (y) the availability thereof may be subject to the existence of no Event of Default under Section 9.1(a), (j) or (k) and (z) compliance with the Secured Leverage Ratio will be determined as of the date of the execution of the definitive agreement with respect thereto.
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Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may request, from time to time, on any Business Day prior to the date time agree that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Lenders shall (i) add one or more new tranches of term facilities and/or increase the principal amount of the Term Loans (each such new tranche or increase, an “Incremental Term Facility”) or (ii) increase to the then existing aggregate amount of Revolving Credit Commitments (any such increase, an “Incremental Revolving Facility”; together with any Incremental Term Facilities, the “Incremental Revolving Credit CommitmentsFacilities”), as applicable, by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) and/or the amount of such increase (or loans that will comprise any such new tranche) and the Facility or Facilities involved, (ii) the establishment applicable Increased Facility Closing Date (which may be selected by the Borrower after the Closing Date) and (iii) in the case of one Incremental Term Loans, (x) the applicable Incremental Term Facility maturity date, (y) the amortization schedule for such Incremental Term Facility and (z) the Applicable Margin for such Incremental Term Facility; provided, that (A) no Default or more new term loan commitments Event of Default exists or shall exist immediately before or after giving effect to such Incremental Facility; (B) except as otherwise agreed by the Lenders (including New Lenders) committing to provide such Incremental Facility, the proceeds of which are to be used to finance a Permitted Acquisition, each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects immediately prior to, and 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, (C) 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 increaseIncremental Term Facility shall be no earlier than or shorter than the maturity date and weighted average life to maturity, respectively, of the 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 to the extent permitted by clause (C) or (D) above), such terms (x) shall be 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, the Lenders (including New Lenders) committing to provide Incremental Term Loans, the proceeds of which are to be used to finance a Permitted Acquisition or Investment, may agree (i) that the satisfaction of the conditions set forth in the foregoing clauses (A) and (B) may be tested as of the 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 any other Credit Party the condition set forth in clause (B). Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments and borrowings of Incremental Term Loans shall not exceed (x) the greater of (x) $100,000,000 and (y) 100% of Consolidated EBITDA for the period of four full consecutive fiscal quarters of the Borrower most recently ended (determined at the time of incurrence of such Indebtedness) (the “Incremental Fixed Amount”) plus (y) an amount so long as the Total Leverage Ratio (as determined on a pro forma basis giving effect to such Incremental Facility as though fully borrowed and any other transactions in connection therewith) is not in excess of 4.00:1.00 (the “Incremental Ratio Amount”) (the sum of clauses (x) and (y), the “Incremental Term Loan CommitmentsLimit”)) and (ii) without the consent of the Administrative Agent, by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, increase effected pursuant to this paragraph shall be effective, in a minimum amount of at least $10,000,000 and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom no more than six Increased Facility Closing Dates may be selected by the Borrower proposes after the Closing Date. No Lender shall have any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline obligation to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, and any Lender approached to provide all financial institution or a portion other entity which, with the consent of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or declineBorrower and, in its sole discretionother than with respect to a Lender, to provide an Incremental Revolving Credit Commitment Affiliate of a Lender, or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date Approved Fund, the Administrative Agent (which consent shall not be designated unreasonably withheld, conditioned or delayed), elects to become a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing “Lender” under this Agreement in the same yearconnection with any transaction described in Section 2.22(a) shall execute a New Lender Supplement (each, a “SeriesNew Lender Supplement”), substantially in the form of Exhibit C, whereupon such bank, financial institution or other entity (a “New Lender”) of Incremental Term Loans shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the Revolving Facility, the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Term Benchmark Loans, of each Term Benchmark Tranche) which would then have been outstanding from such Lender if (i) each such Type or Term Benchmark Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Term Benchmark Tranche requested to be so borrowed or effected had been proportionately increased. The Term SOFR Rate applicable to any Term Benchmark Loan borrowed pursuant to the preceding sentence shall equal the Term SOFR Rate then applicable to the Term Benchmark Loans of the other Lenders in the same Term Benchmark Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Borrower and the relevant Lender).
(d) The proceeds of the Incremental Facilities shall be used for purposes permitted by Section 6.10.
(e) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loans evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
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Incremental Facilities. The On one or more occasions at any time after the Effective Date, the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (iA) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental New Revolving Credit Commitments”) and/or (iiB) the establishment of one or more new term loan commitments (any such increasethe “New Term Loan Commitments”, together with the New Revolving Commitments, the “Incremental Term Loan Commitments”), by up to an aggregate amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of to exceed $1,000,000,000 and not less than $5,000,000 individuallyfor all Incremental Commitments. Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Borrower proposes that the such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and 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 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, (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment Commitment, and (z) any Lender or other Person that is an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) Eligible Assignee (each, a “Series”New Revolving Loan Lender” or “New Term Loan Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrower and the Administrative Agent (such approval not to be unreasonably withheld or delayed), and, in the case of a New Revolving Commitment, the Issuing Bank (each of which approvals shall not be unreasonably withheld), unless such New Revolving Loan Lender or New Term Loan Lender is an existing Lender. The terms and provisions of any New Revolving Commitments shall be identical to the existing Revolving Commitments; provided that the applicable commitment fee, upfront and other fees with respect to any New Revolving Commitments shall be determined by the 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 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, (b) share ratably in any prepayments of the existing Term Loan Facility, unless the Borrower and the New Term Loan Lenders in respect of such New Term Loans elect lesser payments and (c) other than pricing or maturity date, shall have the 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 (subject to the remaining terms of this proviso) with respect to any 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 outstanding or Revolving Commitments in effect immediately prior to giving effect to such New Term Loan Commitments and (y) other terms that are reasonably acceptable to the 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 shall exist and (ii) as of the last day of the most recent month for which financial statements have been delivered pursuant to Section 5.01, the Borrower would have been in compliance with the Financial Covenants that are applicable at such time; (y) the representations and warranties made or deemed made by the Borrower in any Loan Document shall be true and correct in all material respects on the effective date of such Incremental Commitments except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments and (B) if applicable, all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the 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 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 thereof (y) the New Revolving Commitments and the New Revolving Loan Lenders or the New Term Loan Commitments and the New Term Loan Lenders, as applicable, and (z) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The 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 one or more Additional Credit Extension 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, to effect the provisions of this AgreementSection 2.04.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Brixmor Operating Partnership LP)
Incremental Facilities. (a) The Borrower Company may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in Agent, request the form attached hereto as Exhibit G or in 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 other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) notice shall specify (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) date on which the Borrower Company 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 (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 (yii) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretionCommitments, and being requested (it being agreed that (A) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment and (B) any Person that the Company proposes to become an Incremental Revolving Credit 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 or an Incremental Term Loan Commitment. Any Incremental Term and the Loans and other extensions of credit to be made on an Increased Amount Date thereunder shall be designated identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a separate series identified by single Class with such Revolving Commitments and Revolving Loans; provided that, if the year Company determines to increase the interest rate or fees payable in respect of maturity Incremental Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the other Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Term Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as the case 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 Incremental 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) on the date of effectiveness thereof and after giving effect to the making of Loans and issuance of Letters of Credit thereunder to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Borrowers shall make any payments required to be made pursuant to Section 2.17 in connection with such Incremental Revolving Commitments and the related transactions under this Section and (iv) ▇▇▇▇▇▇ USA and the Borrowers shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Administrative Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Revolving Commitment of any Incremental Revolving Lender, (i) such Incremental Revolving Lender shall be deemed to be a “Lender” (and a Lender in respect of Revolving Commitments and Revolving Loans) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or month Lenders in respect of Revolving Commitments and year if there are multiple 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 Term Loans maturing Revolving Commitment shall constitute (or, in the same yearevent such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Revolving Lender and (eachB) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, a in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “SeriesRevolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure and the Revolving Total Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Revolving Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Term Loans for all purposes Revolving Commitments shall be deemed to be repaid, (ii) each Incremental Revolving Lender that shall have had a Revolving Commitment prior to the effectiveness of this Agreement.such Incremental Revolving Commitments shall pay to the Administrative Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Revolving Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Incremental Revolving Commitments shall pay to Administrative Agent in same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) multiplied by
Appears in 1 contract
Sources: Credit Agreement (Murphy USA Inc.)
Incremental Facilities. (a) The Borrower Company may requeston one or more occasions after the Closing Date, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so ; provided that the aggregate amount of the Incremental Commitments are established under this Section 2.21 on any date, together with the aggregate original principal amount of all Alternative Incremental Facility Indebtedness incurred under Section 6.01(l) on such date, shall not exceed an amount equal to (a) the Base Incremental Amount in excess effect on such date, plus (b) the amount of $1,000,000,000 voluntary prepayments of Term Loans pursuant to Section 2.11(a) (other than those financed with the proceeds of Indebtedness) prior to such date (less the aggregate amount of Incremental Commitments and not less than $5,000,000 individuallyAlternative Incremental Facility Indebtedness established prior to such date in reliance on this amount), plus (c) an additional amount subject to the Maximum Incremental Ratio Amount as of such date. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower Company proposes that the Incremental Revolving Credit 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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 Company proposes to become an Incremental Lender, (1) if such Person is not then a Lender, must be an Eligible Assignee and (2) in the case of an Incremental Revolving Credit 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 Facility of a Class 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 Term Commitments and the Term Loans of such Class; provided that (i) the upfront fees, interest rates and floors and, subject to the other restrictions below, amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Company and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) except in the case of an Incremental Term Facility effected as an increase to an existing Class of Term Loans, the weighted average life to maturity of any Incremental Term Loans that are “term A loans” shall be no shorter than the remaining weighted average life to maturity of the Terms Loans that are “term A loans” with the latest Maturity Date and the weighted average life to maturity of any Incremental Term Loans that are “term B loans” shall be no shorter than the remaining weighted average life to maturity of the Terms Loans that are “term B loans” with the latest Maturity Date, (iii) if the all-in yield relating to any Incremental Term Loan Commitmentthat is a “term B loan” exceeds the all-in yield relating to the Initial Term B Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% per annum (to be determined by the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (but only to the extent that an increase or decrease, as applicable, in the interest rate floor applicable to the Initial Term B Loans would result in an increase or decrease, as applicable, in an interest rate then in effect for the Initial Term B Loans hereunder)), then the Applicable Rate relating to the Initial Term B Loans shall be adjusted so that the all-in yield relating to such Incremental Term Loans shall not exceed the all-in yield relating to the Initial Term B Loans by more than 0.50% and (iv) no Incremental Term Maturity Date relating to “term A loans” shall be earlier than the Term A Maturity Date and no Incremental Term Maturity Date relating to “term B loans” shall be earlier than the Term B Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Liens on the Collateral securing the other Loan Document Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by the Company and each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default (or, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving Facility, no Event of Default under clause (a), (b), (h) or (i) of Article VII) shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), (ii) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents (or, in the case of any Incremental Acquisition Term Facility or Incremental Acquisition Revolving Facility, the Specified Representations and the Specified Permitted Acquisition Agreement Representations) shall be true and correct (A) in the case of such representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Company shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental 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 constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the 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 loan to the Company in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e).
Appears in 1 contract
Incremental Facilities. The Borrower may request, from (a) At any time to time, on any Business Day prior to the date that is sixty (60) days prior Incremental Facility Sunset Date, the Borrower may increase the aggregate amount of the Commitments of any existing Class by requesting new delayed draw term loan commitments to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments provide Delayed Draw Loans (any such increase, an “Incremental Facility” or the “Incremental Revolving Credit CommitmentsFacilities”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an aggregate amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan CommitmentsCap, as applicable, shall be effective, and tested at the time of incurrence thereof. The Borrower may invite (yA) the identity of each any Lender, or any Affiliate of any Lender and/or any Approved Fund, and/or (B) any other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments (any such Person, an “Incremental Lender”).
(b) Any Incremental Facility shall be effected pursuant to an Incremental Facility AgreementAmendment executed and delivered by the Administrative Agent, the Borrower and the applicable Incremental Lenders, which Incremental Facility AgreementAmendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22 (it being agreed and understood that the terms applicable to any Incremental Term Facility incurred hereunder shall be substantially similar to the terms applicable to the then-existing Commitments). The Lenders hereby irrevocably authorize and direct the Administrative Agent to enter into any Incremental Facility AgreementAmendment and any amendment to any of the other Loan Documents with the Borrower or the Parent as may be necessary in order to establish new tranches or sub-tranches in respect of Delayed Draw Loans or Commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may elect be necessary or declineappropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches (which may include amending and restating the Loan Documents), in each case on terms consistent with this Section 2.22; it being acknowledged and agreed by each Lender that the Administrative Agent, in its sole discretioncapacity as such shall have no liability with respect to such amendments and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such amendments. For the avoidance of doubt, the amendments referred to in this Section 2.22 shall be subject to the approval requirements set forth in Section 9.08(b)(i) through Section 9.08(b)(viii), in each case, to the extent applicable.
(c) On the effective date of any Incremental Commitment, each Incremental Lender that has agreed to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans Commitments shall become a Lender hereunder.
(d) This Section 2.22 shall supersede any provisions in Section 2.16 or month and year if there are multiple Incremental Term Loans maturing in 9.04 to the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreementcontrary.
Appears in 1 contract
Sources: Credit Agreement (CoreWeave, Inc.)
Incremental Facilities. (a) The Lead Borrower may requestmay, from time to at any time, on one or more occasions pursuant to an Incremental Facility Agreement increase the aggregate amount of Commitments of any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date existing Class of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the an “Incremental Revolving Credit CommitmentsFacility” and the loans thereunder, “Incremental Revolving Loans”); provided that the aggregate principal amount of all Incremental Revolving Facilities incurred after the Restatement Effective Date shall not exceed the Incremental Cap; provided, further, that:
(i) no Incremental Revolving Commitment may be less than $5,000,000;
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender;
(iii) 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 a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan;
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility;
(v) Except as otherwise agreed by the lenders providing the relevant Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this Agreement, no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility;
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital and other general corporate purposes and any other use not prohibited by this Agreement; and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to any existing Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Agreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the establishment Administrative Agent shall have received, from each Additional Revolving Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of one such Incremental Revolving Facility or more new term loan commitments Incremental Revolving Loans and (any iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such increaseIncremental Revolving Facility or Incremental Revolving Loans, and
(B) to the “Incremental Term Loan Commitments”)extent applicable, by an amount not in excess of $500,000,000 in the aggregate so certifying that the aggregate Commitments are not condition set forth in excess clause (a)(x) above has been satisfied.
(i) Each Lender of $1,000,000,000 the applicable class immediately prior to such increase will automatically and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (without further act be deemed to have assigned to each an “Increased Amount Date”) on which the Borrower proposes that the relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such ▇▇▇▇▇▇’s participations hereunder in outstanding Swingline Loans, US Letters of Credit Commitments or and/or European Letters of Credit, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Term Loan CommitmentsRevolving Facility Lender) participations hereunder in Swingline Loans, US Letters of Credit and/or European Letters of Credit, as applicable, shall be effectiveheld on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (y) including the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); 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) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Agreement and any other amendments to this Agreement and the other Loan Lender” Documents with the Loan Parties as may be necessary in order to establish new tranches or sub tranches in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrowers in connection with the establishment of such new tranches or sub tranches, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an “Incremental Term Loan Lender”, as applicable), to whom acquisition and the Borrower proposes any portion of Lenders or Additional Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality consisting of an increase in an existing Commitment, the sublimits applicable to Letters of Credit Commitments or Incremental Term Loan Commitmentsshall increase by an amount, as applicableif any, be allocated agreed upon by Administrative Agent, the Issuing Banks and the amount of such allocations; provided that Administrative Agent may elect Lead Borrower.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or decline 9.02 to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreementcontrary.
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Sources: Abl Credit Agreement (Ecovyst Inc.)
Incremental Facilities. (a) The Borrower may request, from time to time after the Restatement Effective Date elect to increase the Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or obtain one or more tranches of (or increase any existing tranche of) term loans denominated in Dollars (each, an “Incremental Term 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 the Administrative Agent may agree), in the case of Incremental Term Loans, so long as (except in the case of Refinancing Term Loans and Refinancing Revolving Commitments) the aggregate principal amount of Increased Commitments or Incremental Term Loans 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 Commitment or Extended Revolving Commitment, or to participate in such Incremental Term Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, a “New Lender”), to 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 case may be; provided that each New Lender (and, in the case of an Increased Commitment, each Increasing Lender) shall be subject to the approval of the Borrower and, to the extent such consent would be required under Section 9.04 for an assignment to such New Lender, 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 Lenders other than the relevant Increasing Lenders or New Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.19. Increases of Revolving Commitments and Extended Revolving Commitment and new Incremental Term Loans created pursuant to this Section 2.19 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or New Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing (but subject to the following proviso), no Increased Commitments or Extended Revolving Commitments or Incremental Term Loans shall be permitted under this paragraph unless (i) on the proposed date of the effectiveness of such increase in the Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental Term Loan, the conditions set forth in paragraphs (a) and (b) of Section 4.02 shall be satisfied (or waived by the Required Lenders) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided, that to the extent agreed to by the Lenders providing such Increased Commitments or Incremental Term Loans, as applicable, and the proceeds of such Increased Commitments or Incremental Term Loans, as the case may be, are used to finance a Permitted Acquisition or similar Investment, with respect to the condition set forth in Section 4.02(a), only the Specified Representations shall be required to be true and correct, and the condition set forth in Section 4.02(b) shall be limited to an Event of Default under clauses (a), (b), (h) or (i) of Article VII and (ii) other than in the case of Refinancing Term Loans or Refinancing Revolving Commitments, the Borrower shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with the covenants contained in Section 6.09 as of the last day of the most recent fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b) of this Agreement (or, prior to the initial delivery under this Agreement, of the Original Credit Agreement) prior to such time. On the effective date of any increase in the Revolving Commitments or Extended Revolving Commitments, (i) each relevant Increasing Lender and New Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Loans of the applicable Lenders of such class to equal its Applicable Percentage of such outstanding Loans, and (ii) if, on the date of such increase, there are any Business Day Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be prepaid to the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and New Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, and shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.15 if the deemed payment occurs other than on the last day of the related Interest Periods. The terms of any Incremental Term Loans shall be as set forth in the Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that (i)(x) the final scheduled maturity date of any Incremental Term Loans (other than Refinancing Term Loans) which have scheduled amortization in excess of 1.00% per annum, a final maturity of five years or less and which are primarily syndicated to commercial banks in connection with the primary syndication thereof (as reasonably determined by the Administrative Agent) (each, an “Incremental Term A Loan”) shall be no earlier than the Incremental Term A-1 Loan Maturity Date (or any later date required pursuant to any Additional Credit Extension Amendment that has previously become effective) and (y) the final scheduled maturity date of any Incremental Term Loans that are not Refinancing Term Loans or Incremental Term A Loans (each, an “Incremental Term B Loan”) shall be no earlier than the Incremental Term B-1 Loan Maturity Date (or any later date required pursuant to any Additional Credit Extension Amendment that has previously become effective), (ii)(x) the Weighted Average Life to Maturity of any Incremental Term A Loans (other than Refinancing Term Loans) shall not be shorter than the then remaining Weighted Average Life to Maturity of the Incremental Term A-1 Loans (or any longer Weighted Average Life to Maturity required pursuant to any Additional Credit Extension Amendment that has previously become effective) (except to the extent of amortization of up to 1.00% per annum of the original principal amount for periods where amortization has been eliminated as a result of prepayment of the applicable Term Loans) and (y) the Weighted Average Life to Maturity of any Incremental Term B Loans (other than Refinancing Term Loans) shall not be shorter than the then remaining Weighted Average Life to Maturity of the Incremental Term B-1 Loans (or any longer Weighted Average Life to Maturity required pursuant to any Additional Credit Extension Amendment that has previously become effective), (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Term Loans in any mandatory prepayment hereunder (except in the case of (a) incurrence of Refinancing Indebtedness in respect thereof and (b) mandatory prepayments with respect to a Class of Incremental Term Loans issued subject to customary escrow provisions that include a mandatory prepayment applicable solely to such Class of Incremental Term Loans if the applicable escrow release event does not occur prior to the specified escrow “outside date”), (iv) the provisions with respect to payment of interest (including any “MFN” provisions), original issue discount and upfront fees shall be as set forth in the Additional Credit Extension Amendment providing for such Incremental Term Loans; provided that if the Effective Yield of any newly established Class of Incremental Term Loans (other than Refinancing Term Loans) that is established prior to the date that is sixty (60) days prior 12 months from the Restatement Effective Date exceeds the Effective Yield of the Incremental Term B-1 Loans by more than 50 basis points, then the Applicable Rate for the Incremental Term B-1 Loans shall be increased to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate extent required so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion Effective Yield of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and B-1 Loans is equal to the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity Effective Yield of such Incremental Term Loans minus ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (or month and year if there are multiple Incremental Term Loans maturing in the same year▇) (each, a “Series”) 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 purposes 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 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) This Section 2.19 shall override any provisions in Section 9.02 to the contrary.
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Incremental Facilities. (a) So long as no Specified Event of Default exists or would arise therefrom, the Borrower shall have the right, at any time and from time to time after the Closing Date, (i) to request new term loan commitments, including delayed draw term loan commitments (the “New Delayed Draw Term Loan Commitment”), under one or more new term loan credit facilities to be included in this Agreement (the "Incremental Term Loan Commitments"), (ii) to increase existing term loans under this Agreement by requesting new term loan commitments to be added to an existing tranche of term loans under this Agreement (the “Supplemental Term Loan Commitments”), (iii) to increase the existing Revolving Commitments by requesting new Revolving 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 Incremental Revolving Commitments, the “Incremental Commitments"), provided that, (i) (x) the aggregate amount of Incremental Commitments (other than New Delayed Draw Term Loan Commitments if the Borrower, at its option, has elected to establish such New Delayed Draw Term Loan Commitments in compliance with the immediately following subclause (y)) permitted pursuant to this Section 2.25 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, including to refinance other Indebtedness), the Maximum Incremental Facilities Amount and (y) if the Borrower, at its option, has elected to establish New Delayed Draw Term Loan Commitments in compliance with this subclause (y), the aggregate amount of such New Delayed Draw Term Loan Commitments shall be unlimited at the time such New Delayed Draw Term Loan Commitments are established; provided that, (A) term loans may only be incurred in respect of such New Delayed Draw Term Loan Commitments if, at the time of Incurrence thereof (and after giving effect to the application of proceeds of any such term loans to refinance any other Indebtedness), the Maximum Incremental Facilities Amount at such time would not be exceeded, (B) prior to the time that any such New Delayed Draw Term Loan Commitments are funded, any such New Delayed Draw Term Loan Commitments that have not yet been funded shall not be included in the determination of “Required Lenders” (except for the purposes of any amendment or waiver of the conditions to funding of such New Delayed Draw Term Loan Commitments) and (C) to the extent that pro forma effect is given to the entire committed amount of any such New Delayed Draw Term Loan Commitments pursuant to the last parenthetical of clause (ii) of the definition of “Maximum Incremental Facilities Amount” at the time of effectiveness of such commitment, such New Delayed Draw Term Loan Commitments shall be treated as fully drawn solely for purposes of calculating any Incurrence Based Amounts (including any Financial Incurrence Tests) governing the drawings of such New Delayed Draw Term Loan Commitments and (ii) if any portion of an Incremental Commitment (or any term loan incurred in respect of New Delayed Draw Term Loan Commitments) is to be incurred in reliance on clause (ii) of the definition of “Maximum Incremental Facilities Amount”, a Senior Officer or another Responsible Officer of the Borrower shall have delivered (or, in the case of any term loan Incurred in respect of New Delayed Draw Term Loan Commitments, as a condition to the funding of such term loans) a certificate to the Administrative Agent, certifying compliance with the financial test set forth in such clause on each date of funding of such term loans (unless pro forma effect is given to the entire committed amount of any such New Delayed Draw Term Loan Commitments pursuant to the last parenthetical of clause (ii) of the definition of “Maximum Incremental Facilities Amount”, in which case such certificate shall be delivered concurrently with the date of effectiveness of such 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 Section 2.25 shall be in a minimum aggregate amount of at least $1,000,000 and in integral multiples of $500,000 in excess thereof (or such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion).
(b) Each request from the Borrower pursuant to this Section 2.25 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution, an “Additional Incremental Lender,” and the Additional Incremental Lenders together with any existing Lender providing Incremental Commitments, the “Incremental Lenders”); provided that the consent of the Administrative Agent and (in the case of a Supplemental Revolving Commitment) the consent of the Swing Lender (if any) or any L/C Issuer (in each case, such consent not to be unreasonably withheld, conditioned or delayed) shall be required. The Borrower may requestagree, from time in its sole discretion, to timeaccept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Incremental Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to allocate such commitments on any Business Day prior whatever basis the Borrower determines is appropriate.
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the date that is sixty (60) days prior tranche of term loans or Revolving Commitments to be increased, executed by the Stated Revolving Credit Termination Date by written notice to the Administrative Agent Borrower and each increasing Lender substantially in the form attached hereto as Exhibit G I-1 or in such other form acceptable as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Increase Supplement”) or by each Additional Incremental Lender substantially in the form attached hereto as Exhibit I-2 or in such other form as may be appropriate in the opinion of the Borrower and the Administrative Agent (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement each Additional Incremental Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan or commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments, as applicable. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, effect such amendments to any Loan Documents (a including amendments to increase amortization payments or increase interest rate margins or add customary call protection provisions with respect thereto to allow for the applicable Incremental Loans to be fungible with an existing tranche of term loans hereunder) as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.25(c).
(d) Incremental Commitments (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental Commitment Amount Increase RequestAmendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each applicable Incremental Lender and the Administrative Agent. An Incremental Commitment Amendment may, without the consent of any other Lender, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.25; provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of Holdings other than the Loan Parties, and will be secured on a pari passu or (at least five the Borrower’s option, subject to the terms hereof) junior basis by the same Collateral securing the Obligations hereunder (5so long as any such Incremental Commitments (and related Obligations) Business Days are subject to an Intercreditor Agreement) or (at the Borrower’s option) will be unsecured, (B) the Incremental Commitments and any incremental loans drawn thereunder (the “Incremental Loans”) shall rank pari passu in right of payment with or (at the Borrower’s option) junior to the Obligations hereunder pursuant to a Subordination Agreement and (C) no Incremental Commitment Amendment may provide for (I) any Incremental Commitment or any Incremental Loans to be secured by any Lien on any asset that does not also secure the Obligations hereunder and (II) [reserved]; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) the maturity date or weighted average life to maturity of any Incremental Commitment shall be no earlier than, and no scheduled mandatory commitment reduction in respect thereof shall be required prior to the desired effective latest maturity date of such increase (the “Commitment Amount Increase”x) (i) an increase with respect to the then existing Incremental Revolving Commitments, Supplemental Revolving Commitments and Incremental Letter of Credit Commitments (any such increaseCommitments, the “Incremental Revolving Credit Commitments”Loans and (y) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “with respect to Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Supplemental Term Loan Commitments, as applicable, the Incremental Term Loans; (iv) [reserved]; (v) the interest rate margins and amortization schedule applicable to the loans made pursuant to the Incremental Commitments shall be effectivedetermined by the Borrower and the applicable Incremental Lenders; (vi) such Incremental Commitment Amendment may provide (1) for the inclusion, and (y) as appropriate, of Additional Incremental Lenders in any required vote or action of the identity “Required Lenders” or of the Lenders of each Lendertranche hereunder, or (2) class voting and other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes class protections for any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocationsadditional credit facilities; provided that Administrative Agent may elect or decline no such class protection provisions shall directly and adversely impact any voting rights of any other Lenders and (3) for the amendment of certain definitions and provisions, in each case only to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments extend the maturity date and the weighted average life to maturity requirements with respect to the term loans; and (vii) the other terms and documentation in its sole discretionrespect thereof, and any Lender approached to provide all or a portion of the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or declineCommitment Amendment, in its sole discretion, shall otherwise be reasonably satisfactory to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this AgreementBorrower.
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Incremental Facilities. The Borrower On one or more occasions at any time after the Closing Date, the Borrowers may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (iA) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (iiB) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”, together with the Incremental Revolving Commitments, the “Incremental Commitments”), by in an aggregate amount not to exceed the greater of (i) $1,150,000,000 and (ii) 100% of NAI-1539367892v12 Consolidated EBITDA for the most recently ended Testing Period for which a Compliance Certificate has been delivered in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individuallyaccordance with Section 5.01(c). Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Borrower proposes applicable Borrowers propose that the such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and 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 Borrowers, 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 identity of each LenderIncremental 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 an “Incremental Term Loan Lender”, ,” as applicable), ) to whom the Borrower proposes any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrowers and the Administrative Agent, and, if an Incremental Revolving Credit Commitments 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 Incremental Term Loans shall provide that the maturity date of any Incremental Term Loan shall be no earlier than the Revolving Maturity Date (but may have scheduled amortization payments prior to such date). 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 shall exist and (ii) as of the last day of the most recent month for which financial statements have been delivered pursuant to Section 5.01, the Company would have been in compliance with the Financial Covenants that are applicable at such time; (y) the representations and warranties made or deemed made by the Borrowers in any Loan Document shall be true and correct in all material respects on the effective date of such Incremental Commitments except to the extent that such representations and warranties expressly relate solely to an earlier date (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 Loan Documents; and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the 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; (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 applicable Borrowers payable to any new Lender, and replacement notes executed by the applicable Borrowers payable to any existing Lenders. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan NAI-1539367892v12 Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to its Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender shall make a Loan to the applicable Borrowers (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. The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof (y) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Incremental Term Loan Commitments and the Incremental Term Loan Lenders, as applicable, and (z) in the case of each notice to any Revolving Lender, the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The upfront fees payable to the Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders shall be allocated determined by the applicable Borrowers and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such applicable Incremental Revolving Loan Lenders and/or Incremental Term Loan Lenders. The Incremental Commitments shall be effected pursuant to one or more Additional Credit Commitments Extension Amendments executed and delivered by the applicable Borrowers and the Incremental Revolving Loan Lender or Incremental Term Loan Commitments in its sole discretionLender, 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 Lender approached other Lenders, effect such amendments to provide all this Agreement and the other Loan Documents as may be necessary or a portion appropriate, in the opinion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretionAdministrative Agent and the Company, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by effect the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes provisions of this AgreementSection 2.04.
Appears in 1 contract
Sources: Revolving Credit Agreement (Cooper Companies, Inc.)
Incremental Facilities. The 1. . Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days request prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increaseMaturity Date, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new incremental term loan commitments Commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 the Incremental Debt Cap in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $10,000,000 in the case of each such increase (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between the Incremental Debt Cap and all such Incremental Term Loan Commitments obtained prior to such date, together with all Incremental Debt outstanding under Section 10.2.1(n)), and integral multiples of $5,000,000 individuallyin excess of that amount. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day date (each each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, 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 Administrative Agent or such shorter period of time as consented to by Administrative Agent and (yB) the identity of each Lender, or other Person that is an Eligible Assignee or other Person not then either a Lender or Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, discretion and any Lender or other Person approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Term Loan Commitment; provided, further, that each Lender and other Person that Borrower proposes to become an Incremental Term Loan CommitmentLender must be reasonably acceptable to Administrative Agent. Such Incremental Term Loan Commitments shall become effective, as of such Increased Amount Date; provided that (1) (i) as of such Increased Amount Date (A) if such Class of Incremental Term Loans is being requested in connection with a Permitted Acquisition, no Event of Default under Sections 12.1(a) or (h) has occurred or is continuing or would immediately result therefrom, and (B) otherwise, no Default or Event of Default shall exist as of such date, or immediately result from such funding; and (ii) both immediately before and after giving effect to the making of any Class of Incremental Term Loans, the representations and warranties of each Obligor in the Loan Documents (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the Acquisition Agreement for such Permitted Acquisition) shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) (except for representations and warranties that expressly relate to an earlier date); (2) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Borrower, the Incremental Term Loan Lender and Administrative Agent, and each of which shall be recorded in the Register and each Incremental Term Loan Lender shall be subject to the requirements set forth in Section 5.9; (3) Borrower shall make any payments required pursuant to Section 3.9 in connection with the Incremental Term Loan Commitments; and (4) Borrower shall deliver or cause to be delivered any legal opinions, mortgage modifications or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) Class of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of any Class of Incremental Term Loans shall make a Loan to Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class, and (ii) each Incremental Term Loan Lender of any Class of Incremental Term Loans 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. Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and in respect thereof the Class of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Class of Incremental Term Loans. The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Class shall be as set forth herein or in the Joinder Agreement. In any event (i) 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 Loan or any other Class of Incremental Term Loans, (ii) the applicable Maturity Date of each Class of Incremental Term Loans shall be no shorter than the latest of the final maturity of the Initial Term Loans or any other Class of Incremental Term Loans, (iii) the Weighted Average Yield applicable to the Incremental Term Loans of each Class shall be determined by Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the Weighted Average Yield applicable to the Incremental Term Loans shall not be greater than the applicable Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to any Loan plus 0.50% per annum unless the interest rate with respect to such Loan is increased so as to cause the then applicable Weighted Average Yield under this Agreement on such Loan to equal the Weighted Average Yield then applicable to the Incremental Term Loans less 0.50%, (iv) all Incremental Term Loans shall rank pari passu in right of payment and security with the Initial Term Loans, (v) all other terms of the Incremental Term Loans and Incremental Term Loan Commitments, if not consistent with the terms of the Initial Term Loan, must be reasonably acceptable to Administrative Agent, but in no event, directly or indirectly, shall the covenants or other provisions applicable to any Incremental Term Loan be more restrictive, or impose a more burdensome condition, on Borrower or its subsidiaries, or its or their assets, properties, business or operations than are provided for with respect to the Initial Term Loans (or the Lenders under the Initial Term Loan (or existing Incremental Term Loan) receive the benefit of the more restrictive terms, which, for avoidance of doubt, may be provided to them without their consent), in each case, as certified by a Senior Officer of the Borrower in good faith, (B) concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Incremental Term Loan or (C) apply after the applicable Maturity Date (it being understood to the extent that any financial maintenance covenant is added for the benefit of any such Incremental Term Loan, no consent shall be required from the Administrative Agent or Lenders to the extent that such financial maintenance covenant is also added for the benefit of the Initial Term Loan and any existing Incremental Term Loan existing at the time such subsequent Incremental Term Loan is incurred), and (vi) not have any terms which require it to be voluntarily or mandatorily prepaid prior to the repayment in full of the Initial Term Loans and any other Incremental Term Loans, unless accompanied by at least a ratable payment of the Loans. 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 Administrative Agent to effect the provision of this Section 2.4.
Appears in 1 contract
Sources: Term Loan and Security Agreement (DXP Enterprises Inc)
Incremental Facilities. (a) The Borrower Company may requeston one or more occasions after the Closing Date, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so ; provided that the aggregate amount of the Incremental Commitments are 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 Amount in excess effect on such date, and an additional amount subject to the Maximum Incremental Amount as of $1,000,000,000 and not less than $5,000,000 individuallysuch date. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower Company proposes that the Incremental Revolving Credit 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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 Company proposes to become an Incremental Lender, (1) if such Person is not then a Lender, must be an Eligible Assignee and (2) in the case of an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall , must be designated a separate series identified by reasonably satisfactory to the year of maturity of such Incremental Term Loans (or month Administrative Agent, each Issuing Bank and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this AgreementSwingline Lender).
Appears in 1 contract
Incremental Facilities. The Borrower (a) Holdings may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”A) at least five (5) Business Days prior to the desired effective date Maturity Date of such increase (the “Commitment Amount Increase”) (i) Revolving Credit Facility, an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (iiB) prior to the Maturity Date of the Term A Facility, the establishment of one or more new term loan A commitments (any such increase, the “Incremental Term Loan A Commitments”)) and/or (C) prior to the Maturity Date of a Term B Facility, the establishment of one or more new term loan B commitments (the “Incremental Term Loan B Commitments”) by an amount not in excess of an aggregate amount equal to $500,000,000 in after the aggregate so that Third Restatement Date (such amount, the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually“Incremental Capacity”). Each such Commitment Amount Increase Request notice shall identify specify (xi) the Business Day date (each each, an “Increased Amount Date”) on which the Borrower Holdings proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan A Commitments or Term Loan B 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 (yii) the identity of each Lender, Lender or other Person that is Person, which must be an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan A Lender”, as applicable), ) to whom the Borrower Holdings proposes any portion of such Incremental Revolving Credit Commitments, or Incremental Term Loan A Commitments or Incremental Term Loan B Commitments, as applicable,, as applicable, be allocated and the amount amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any . Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments, Incremental Term Loan A Commitments or Incremental Term Loan B Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment, an Incremental Term Loan A Commitment or an Incremental Term Loan CommitmentB Commitments. Such Incremental Revolving Commitments, Incremental Term Loan A Commitments or Incremental Term Loan B Commitments shall become effective as of such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Revolving Commitments, Incremental Term Loan A Commitments or an Incremental Term Loan B Commitments, as applicable, and the extensions of credit to be made thereunder on such date; provided that, with respect solely to an Incremental Term Loan, if the proceeds of such Incremental Term Loan are used to finance a Limited Condition Acquisition subject to customary “Sungard provisions”, if agreed to by Holdings and the holders of such Incremental Term Loan, the condition in this clause (i) may be limited to (x) no Event of Default in existence at the time of executing the applicable definitive agreement or resulting therefrom with respect to the subject Permitted Acquisition or other similar permitted Investment and (y) no Event of Default under Sections 8.01(a), (f) or (g) in existence at the time of incurrence of such Incremental Term Loan or resulting therefrom; (ii) both before and immediately after giving effect to the making of any Incremental Term A Loans or any Incremental Term B Loans, each of the conditions set forth in Section 4.03 shall be satisfied; provided that, with respect solely to an Incremental Term Loan, if the proceeds of such Incremental Term Loan are used to finance a Limited Condition Acquisition subject to customary “Sungard provisions”, the condition in this clause (ii) may be limited to the accuracy of certain representations and warranties contained herein and in the applicable definitive agreement governing such Permitted Acquisition or permitted Investment with customary “SunGard” conditionality as of the date of consummation of such Limited Condition Acquisition; (iii) Holdings shall be in pro forma compliance with each of the covenants set forth in Section 7.11, in each case as of the last day of the most recently ended fiscal quarter and as of the Increased Amount Date (assuming for such purpose that the relevant ratios shall have been calculated taking into account all Consolidated Funded Indebtedness outstanding on such date, Consolidated EBITDA as of the most recently completed Measurement Period and the Consolidated Cash Interest Expense for such Measurement Period (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 question set forth in Section 7.11 (as applicable))) after giving effect to 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 Incremental Joinder Agreements executed and delivered by Holdings or the applicable Revolving Credit Borrowers, as applicable, the Incremental Revolving Loan Lender(s), the Incremental Term Loan A Lender(s) or any Incremental Term B Loan Lender(s), as applicable, and the Administrative Agent, each of which shall be recorded in the Register (and each Incremental Revolving Loan Lender, Incremental Term Loan A Lender and the Incremental Term B 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 security with the Revolving Credit Facility, the Term A Facility and any Term B 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 Incremental Revolving Commitments, Incremental Term Loan A Commitments and any Incremental Term Loan B Commitments shall have been paid, (vii) the incurrence of Incremental Term A Loans, any Incremental Term Loan B 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 identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term A Loans for all purposes of this Agreement or, if made on terms identical to (i) in the case of Incremental Term A Loans denominated in Australian Dollars, the Australian Dollar Term A Loans, (ii) in the case of Incremental Term A Loans denominated in Euros, the Euro Term A Loans, or (iii) in the case of Incremental Term A Loans denominated in U.S. Dollars, the U.S. Dollar Term A Loans, may constitute a part of the Australian Dollar Term A Facility, the Euro Term A Facility or the U.S. Dollar Term A Facility, as applicable.
(b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Credit Lenders shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the existing Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans 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 Revolving Credit Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (iii) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
(c) On any Increased Amount Date on which any Incremental Term Loan A Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan A Lender of any Series shall 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 Series shall become a Lender hereunder with respect to the Incremental Term Loan A Commitment of such Series and the Incremental Term A Loans of such Series made pursuant thereto.
(d) On any Increased Amount Date on which any Incremental Term Loan B Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan B Lender of any Series shall make a Loan to Holdings (an “Incremental Term B Loan” and, together with the Incremental Term A Loans, the “Incremental Term Loans”) in an amount equal to its Incremental Term Loan B Commitment of such Series and (ii) each Incremental Term Loan B Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan B Commitment of such Series and the Incremental Term B Loans of such Series made pursuant thereto. Any Incremental Term B Loans made on an Increased Amount Date shall be designated a separate Series of Incremental Term B Loans for all purposes of this Agreement or, if made on terms identical to then-existing Term B Loans, may constitute a part of such Term B Facility.
(e) The Administrative Agent shall notify the Lenders promptly upon receipt of Holdings’ notice of each Increased Amount Date and in respect thereof (i) 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 and the Series of Incremental Term Loan B Commitments and the Incremental Term Loan B Lenders 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.
(f) Except as otherwise provided herein, the terms and documentation in respect of any Incremental Term A Loans and Incremental Term Loan A Commitments shall be reasonably satisfactory to Holdings, the Administrative Agent and the Incremental Term Loan A Lenders; provided that the terms and provisions of the Incremental Term A Loans and Incremental Term Loan A Commitments of any Series shall be, except as otherwise set forth herein or as otherwise agreed by Holdings, the Administrative Agent and the Incremental Term Loan A Lenders and set forth in the Incremental Joinder Agreement, (i) in the case of Incremental Term A Loans denominated in Australian Dollars, identical to the Australian Dollar Term A Loans, (ii) in the case of Incremental Term A Loans denominated in Euros, identical to the Euro Term A Loans, or (iii) in the case of Incremental Term A Loans denominated in U.S. Dollars, identical to the U.S. Dollar Term A Loans. Notwithstanding the foregoing, (i) the Weighted Average Life to Maturity of all Incremental Term A Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Australian Dollar Term A Loans, the Euro Term A Loans or the U.S. Dollar Term A Loans, (ii) the applicable Incremental Term Loan A Maturity Date of each Series shall be no shorter than the latest final maturity date of the Australian Dollar Term A Loans, the Euro Term A Loans or the U.S. Dollar Term A Loans, (iii) the yield applicable to the Incremental Term A Loans of each Series shall be determined by Holdings and the applicable new Lenders and shall be set forth in each applicable Incremental Joinder Agreement; provided, however, that if the All-in Yield applicable to the Incremental Term A Loans exceeds the applicable All-in Yield of the Australian Dollar Term A Loans, the Euro Term A Loans or the U.S. Dollar Term A Loans by more than 0.50% per annum, the applicable interest rate of such Term A Loans shall be increased (without further consent of the affected Lenders) so that the All-in Yield applicable to the Incremental Term A Loans is not more than 0.50% per annum more than the All-in Yield applicable to such Term A Loans and (iv) the currency of any Incremental Term A Loans may be U.S. Dollars, Canadian Dollars, Euros, Pounds Sterling, Australian Dollars or any other lawful currency that is readily available and freely transferable and convertible into U.S. Dollars, in each case as determined by Holdings, the Administrative Agent and the applicable Incremental Term Loan Lenders.
(g) Except as otherwise provided herein, the terms and documentation in respect of any Incremental Term B Loans and Incremental Term Loan B Commitments shall be reasonably satisfactory to Holdings, the Applicable Administrative Agent and the Incremental Term Loan B Lenders; provided that, the terms and provisions of the Incremental Term B Loans and Incremental Term Loan B Commitments of any Series shall be, except as otherwise set forth herein or as otherwise agreed by Holdings, the Applicable Administrative Agent and the Incremental Term Loan B Lenders and set forth in the Incremental Joinder Agreement, identical to the Term B Loans. Notwithstanding the foregoing, (i) the Weighted Average Life to Maturity of all Incremental Term B Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Australian Dollar Term A Loans, the Euro Term A Loans or the U.S. Dollar Term A Loans and of any then-existing Term B Loans, (ii) the applicable Incremental Term Loan B Maturity Date of each Series shall be no shorter than the latest final maturity date of the Australian Dollar Term A Loans, the Euro Term A Loans or the U.S. Dollar Term A Loans, or any then-existing Term B Loans, (iii) with respect to Incremental Term B Loans primarily syndicated to institutional investors secured by Collateral on a pari passu basis with the Obligations only, the yield applicable to the Incremental Term B 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 B Loans exceeds the applicable All-in Yield of the Term B Loans by more than 0.50% per annum, the applicable interest rate of the Term B Loans shall be increased (without further consent of the affected Lenders) so that the All-in Yield applicable to the Incremental Term B Loans is not more than 0.50% per annum more than the All-in Yield applicable to the Term B Loans, and (iv) the currency of any Incremental Term B Loans may be U.S. Dollars, Canadian Dollars, Euros, Pounds Sterling, Australian Dollars or any other lawful currency that is readily available and freely transferable and convertible into U.S. Dollars, in each case as determined by Holdings, the Administrative Agent and the applicable Incremental Term Loan Lenders.
(h) The terms and provisions of the Incremental Revolving Loans shall be identical to the 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 shall be increased to equal such required rate without further consent of the affected Lenders.
(i) Each
Appears in 1 contract
Sources: Credit Agreement (ACCO BRANDS Corp)
Incremental Facilities. (a) The Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) request an increase to the then existing in Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), which Incremental Revolving Commitments shall be on terms identical to those applicable to the other Revolving Commitments in place on the applicable Incremental Revolving Commitment Effective Date, by an amount (for all such requests) not in excess of $500,000,000 100,000,000 in the aggregate so that aggregate; provided that, (i) any such request for an Incremental Revolving Commitment shall be in a minimum amount of $10,000,000 (or, if less, the aggregate Commitments are not remaining portion of the available Incremental Revolving Commitments) and integral multiples of $1,000,000 in excess of $1,000,000,000 such amount, and (ii) the Borrower may not less submit more than $5,000,000 individuallyfour such requests during the term of this Agreement. Each such Commitment Amount Increase Request notice shall identify specify (xi) the Business Day date (each each, an “Increased Amount Incremental Revolving Commitment Effective 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 15 Business Days (or such shorter period as agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (yii) the identity of each Lender, Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretionthat, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Each Lender shall notify the Administrative Agent within the required time period whether or not it agrees to provide any portion of the applicable Incremental Term Loans made on an Increased Amount Date Revolving Commitments and, if so, shall be designated a separate series identified by specify the year of maturity amount of such Incremental Term Loans Revolving Commitments it desires to be allocated to it. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitments. Such Incremental Revolving Commitments shall become effective as of such Incremental Revolving Commitment Effective Date; provided that, (i) the Borrower shall pay all reasonable and documented out-of-pocket expenses (including any upfront fees and reasonable and documented fees and out-of-pocket expenses of counsel) of the Incremental Revolving Lenders and the Administrative Agent, (ii) the Borrower shall have delivered to the Administrative Agent a certificate dated as of such Incremental Revolving Commitment Effective Date and signed by a Financial Officer (x) certifying and attaching the resolutions adopted by the Borrower approving the applicable Incremental Revolving Commitments, and (y) certifying that (1) no Default exists on such Incremental Revolving Commitment Effective Date before or month after giving effect to such Incremental Revolving Commitments, (2) both before and year if there are multiple after giving effect to the Incremental Term Loans maturing Revolving Commitments, the representations and warranties of the Loan Parties contained herein and in the same yearother Loan Documents are true and correct in all material respects on and as of the Incremental Revolving Commitment Effective Date (except to the extent such representations and warranties relate solely to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date), and (3) the Borrower is in pro forma compliance with each of the financial covenants set forth in Section 6.1 as of the last day of the most recently ended fiscal quarter after giving effect to such Incremental Revolving Commitments, calculated assuming the Incremental Revolving Commitments are fully drawn, (eachiii) the Incremental Revolving Commitments shall be effected pursuant to one or more agreements in form and substance satisfactory to the Administrative Agent, executed and delivered by the Borrower, each Incremental Revolving Lender and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Lender shall be subject to the requirements set forth in Section 2.17(g), and (iv) the Borrower shall deliver or cause to be delivered a certificate as to the foregoing and any legal opinions, reaffirmations of security, reaffirmations of guarantees or other documents reasonably requested by the Administrative Agent in connection with any such transaction. On each Incremental Revolving Commitment Effective Date, subject to the terms and conditions set forth in this Section, each Incremental Revolving Commitment shall be a Revolving Commitment and part of the Revolving Facility (and not a separate Facility hereunder), each Incremental Revolving Lender providing such Incremental Revolving Commitment shall be, and have all the rights of, a “Series”) Revolving Lender, and the Revolving Loans made by it on such Incremental Revolving Commitment Effective Date pursuant to this Section shall be Revolving Loans, for all purposes of this Agreement. Except for purposes of this Section 2.22(a), any Incremental Term Loans Revolving Commitments that are designated as an increase to the Revolving Commitments shall be deemed to be effective as of the applicable Incremental Revolving Commitment Effective Date, and after the effectiveness of such Incremental Revolving Commitments, Revolving Commitments for all purposes of this Agreement.
(b) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Revolving Commitment Effective Date. Any existing Revolving Lender that has a Note and participates in any Incremental Revolving Commitment shall, following request therefor and substantially contemporaneously with the delivery of its Note to be replaced to the Borrower, receive a replacement Note that evidences the aggregate principal amount of its Revolving Loans outstanding hereunder. Any new Lender requesting a Note shall receive such a Note in an amount equal to the aggregate principal amount of its Incremental Revolving Commitment.
(c) The Incremental Revolving Commitments established pursuant to this Section 2.22, and all Revolving Loans thereunder, shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents and shall, without limiting the foregoing, benefit equally and ratably with the Obligations from the Guarantors and security interests created by the Security Documents.
Appears in 1 contract
Sources: Credit Agreement (Globant S.A.)
Incremental Facilities. The Borrower may request, from time to timetime after the Closing Date, on any Business Day prior establish one or more tranches of term loans or increase an outstanding tranche of term loans (each an “Incremental Term Facility”), and/or increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as “Incremental Facilities”) to this Agreement at the date that is sixty (60) days prior to option of the Stated Revolving Credit Termination Date Borrower by written notice to an agreement in writing entered into by the Borrower, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(i) the principal amount of such 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 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.
(ii) no Default shall have occurred and be continuing, and no Default would exist after giving effect to any Incremental Facility, both on the date on which such Incremental Facility 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 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 ▇▇▇▇▇▇’s sole and absolute discretion;
(v) the borrower and guarantors for each Incremental Facility shall be the same as for the Revolving Facility and Term Facility, each Incremental Facility shall be secured by Liens in the Collateral that are parity with the Liens in the Collateral securing the Obligations and each Incremental Facility shall rank pari passu in right of payment with the Obligations;
(vi) each Incremental Facility shall be effective only upon receipt by the Administrative Agent of (A) additional commitments in respect of such requested Incremental Facility (each an “Incremental Facility Commitment”) from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees and (B) documentation from each Person providing an Incremental Facility Commitment evidencing its Incremental Facility Commitment and its obligations under this Agreement in form attached hereto as Exhibit G or in such other form and substance acceptable to the Administrative Agent;
(vii) the Administrative Agent shall have received:
(A) a “Commitment Amount Increase Request”) at least five (5) Business Days prior to certificate of the desired Borrower dated as of the effective date of such increase Incremental Facility signed by a Responsible Officer of the Borrower (1) certifying and attaching resolutions adopted by the “Commitment Amount Increase”) board of directors or equivalent governing body of the Borrower approving such Incremental Facility (i) an increase which may be the same resolutions as those delivered pursuant to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”Section 4.01(c)(ii), if such resolutions are deemed appropriate by an amount not in excess the Administrative Agent for purposes of $500,000,000 in approving the aggregate so that Incremental Facility and authorizing the aggregate Commitments are not in excess of $1,000,000,000 necessary actions incident thereto), and not less than $5,000,000 individually. Each (2) certifying that, before and after giving effect to such Commitment Amount Increase Request shall identify Incremental Facility, (x) the Business Day 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 (each an “Increased Amount Date”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 the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, case they shall be effectivetrue 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 identity incurrence of such Incremental Facility (and (1) assuming that the entire amount of such Incremental Facility is funded and (2) excluding the proceeds of such Incremental Facility from the cash netting in Consolidated Net Indebtedness for purposes of calculation of the Consolidated Senior Secured Leverage Ratio and the Consolidated Total Leverage Ratio) the Borrower is in compliance with the financial covenants in Section 7.11 on a Pro Forma Basis;
(C) such amendments to the Collateral Documents as the Administrative Agent reasonably requests to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental 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 LenderLender (including each Person providing an Incremental Facility Commitment), or dated as of the effective date of such Incremental Facility; and
(E) such other Person that is 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 Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom Increase:
(A) the Borrower proposes any portion 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 Commitments or and Swing Line Loans to the Lenders providing such Incremental Term Loan CommitmentsRevolving Increase, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline make such adjustments to arrange the Register as are necessary, so that after giving effect to such Incremental Revolving Credit Commitments or Increase and such assignments and adjustments, each Lender (including the Lenders providing such Incremental Term Loan Commitments in Revolving Increase) will hold its sole discretion, and any Lender approached to provide all or a portion pro rata share (based on its Applicable Percentage of the Incremental increased Aggregate Revolving Commitments) of outstanding Revolving Loans and participation interests in Letters of Credit Commitments or Incremental Term Loan Commitments may elect or decline, and Swing Line Loans;
(ix) in its sole discretion, to provide an Incremental Revolving Credit Commitment or the case of an Incremental Term Loan Commitment. Any Facility structured as a separate term loan:
(A) the interest rate, interest rate margins, interest rate floors, fees, original issue discount, prepayment premiums, amortization, mandatory prepayments, “most favored nation” pricing protection and final maturity date for such Incremental Term Loans made on an Increased Amount Date Facility shall be designated a separate series identified as agreed by the year of Borrower and the Lenders providing such Incremental Term Facility; provided that:
(1) the final maturity of such Incremental Term Loans Facility shall not be earlier than the Maturity Date then applicable to the Term Loan;
(or month and year if there are multiple 2) the Weighted Average Life of such Incremental Term Loans maturing in Facility shall not be shorter than the same yearthen remaining Weighted Average Life of the Term Loan; and
(3) (each, a “Series”) prepayment requirements of such Incremental Term Loans Facility shall be customary for all purposes such type of this Agreement.term loan facilities (as determined by the Administrative Agent in its discretion);
Appears in 1 contract
Incremental Facilities. (a) The Borrower may requestat any time after the Utilisation Date (in respect of a Term Facility) notify the Facility Agent by delivery of a written notice (an “Incremental Facility Notice”) that it wishes to establish a new term loan facility in US dollars (being an “Incremental Facility”), from time whereupon the Facility Agent shall promptly deliver a copy of such Incremental Facility Notice to time, on each of the Lenders.
(b) Any Incremental Facility (the subject of any Business Day prior Incremental Facility Notice) shall be established upon the countersignature by the Facility Agent of such Incremental Facility Notice delivered by the Borrower to the date that is sixty Facility Agent pursuant to paragraph (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) a), provided that:
(i) an increase the requirements under this Clause 2.5 with respect to such Incremental Facility are satisfied and the then existing Revolving Credit Commitments Borrower shall have certified in such Incremental Facility Notice that all of such requirements are satisfied with respect to such Incremental Facility including reasonable particulars thereof (any such increase, including computations demonstrating satisfaction of the “Incremental Revolving Credit Commitments”) and/or requirements under paragraph (d)(i));
(ii) the establishment Borrower shall have, together with the delivery of such Incremental Facility Notice, delivered to the Facility Agent Incremental Facility Increase Confirmations (with respect to such Incremental Facility) executed by one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day persons (each an “Increased Amount Date”of whom satisfies the criteria applicable to New Lenders set out in Clause 25.1 (Assignments and transfers by the Lenders) on which and is not a Total Transaction Obligor, a Group Member, any Affiliate of any of the Borrower proposes that the Incremental Revolving Credit Commitments foregoing or Incremental Term Loan Commitments, as applicable, shall be effective, and any Sponsor Affiliate) (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, such person being an “Incremental Revolving Loan Facility Original Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion in respect of such Incremental Revolving Credit Commitments or Facility) selected by the Borrower, pursuant to which Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange Facility Increase Confirmations each such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Facility Original Lender approached agrees to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide assume an Incremental Revolving Credit Facility Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity in respect of such Incremental Term Loans Facility as set out in such Incremental Facility Increase Confirmation to which it is a party;
(or month iii) the aggregate Incremental Facility Commitments (in respect of such Incremental Facility) specified in any and year if there are multiple all such Incremental Term Loans maturing Facility Increase Confirmations must not exceed the aggregate Incremental Facility Commitments (in respect of such Incremental Facility) specified in such Incremental Facility Notice;
(iv) such Incremental Facility Notice (in respect of such Incremental Facility) specifies:
(A) the same yearaggregate Incremental Facility Commitments in respect of such Incremental Facility;
(B) the Availability Period with respect to such Incremental Facility;
(each, a “Series”C) of the pricing terms with respect to such Incremental Term Loans for all purposes of this Agreement.Facility;
(D) the repayment terms with respect to such Incremental Facility; and
(E) any other administrative requirements with respect to such Incremental Facility (including with respect to any Utilisation thereunder);
Appears in 1 contract
Sources: Deed of Amendment Agreement (RISE Education Cayman LTD)
Incremental Facilities. The Borrower may request, from time to time, on any Business Day prior to the date that is sixty six (606) days months prior to the Stated Revolving Credit Scheduled Termination Date or the Term Loan Termination Date, as applicable, by written notice to the Administrative Agent in the form attached hereto as Exhibit G H or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 150,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 500,000,000650,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, discretion and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one 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 more new term loan commitments (the date of issuance of any such increaseAlternative Incremental Facility Indebtedness, as the “case may be, exceed the Maximum Incremental Term Loan Commitments”), by an amount not Amount in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individuallyeffect on such date. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five (5) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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, (1) if such Person is not then a Lender, must be an Eligible Assignee and (2) in the case of an Incremental Revolving Credit Commitment, must be reasonably acceptable to the Administrative Agent, each Issuing Bank and the Swingline Lender (in each case, to the extent the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be, would be required to consent to an assignment to such Person in accordance with Section 9.04(b)).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, substantially identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided, that, (w) the maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date, (x) the upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Borrower and the Incremental Revolving Lenders providing such Incremental Facility, (y) all Incremental Revolving Commitments shall be secured by the Collateral on a pari passu basis with the other Loan Document Obligations and (z) no Incremental Revolving Commitments shall be secured by any property or assets of Holdings, the Borrower or any of their Subsidiaries other than the Collateral or be guaranteed by any Person other than Holdings and Subsidiaries that are Subsidiary Loan Parties. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, substantially identical to those of the Term Commitments and the Term Loans; provided, that, (i) the upfront fees, interest rates, call protection, mandatory prepayments and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) except for Inside Maturity Accordion Indebtedness, the weighted average life to maturity of any such Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Class of existing Term Loans with the longest remaining weighted average life to maturity at such time, (iii) except for Inside Maturity Accordion Indebtedness, any such Incremental Term Facility will mature no earlier than the Latest Maturity Date applicable to any Class of existing Term Loans at such time, (iv) the terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall not be materially more favorable, taken as a whole, to the lenders providing such Incremental Term Facility than the terms applicable to the existing Term Loans (as determined by Holdings in good faith), other than (A) (I) covenants or other provisions applicable only to periods after the Latest Maturity Date of any Class of existing Term Loans and (II) covenants or other provisions that are also for the benefit of the Lenders in respect of the Loans and Commitments outstanding at the time such Incremental Term Facility is incurred and (B) to the extent required by the lenders providing such Incremental Term Facility, customary “most-favored-nation” protection, call protection, and an excess cash flow prepayment, in each case, which may be applicable solely with respect to such Incremental Term Facility (it being understood that to the extent an excess cash flow prepayment is required in connection with the establishment of an Incremental Term Facility, such excess cash flow mandatory prepayment shall be applied ratably to all then-existing Term Loans; provided, that, a Financial Officer of Holdings shall have delivered a certificate to the Administrative Agent at least two (2) Business Days prior to the incurrence of such Incremental Term Facility (or such shorter period of time as may reasonably be agreed by the Administrative Agent), together with a summary of the material terms and conditions of such Incremental Term Facility, stating that Holdings has determined in good faith that such material terms and conditions satisfy the requirements set forth in this clause (iv), which determination shall be conclusive, (v) all Incremental Term Facilities shall be secured by the Collateral on a pari passu basis with the other Loan CommitmentDocument Obligations and (vi) no Incremental Term Facility shall be secured by any property or assets of Holdings or any of their Subsidiaries other than the Collateral or be guaranteed by any Person other than Holdings and Subsidiaries that are Subsidiary Loan Parties. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. Each Incremental Facility and all extensions of credit thereunder shall be secured by the Collateral on a pari passu basis with the Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by Holdings, the Borrower, each Incremental Lender providing such Incremental Commitments and Incremental Facilities and the Administrative Agent; provided, that, no Incremental Commitments shall become effective unless (i) subject to Section 1.05, no Event of Default shall have occurred and be continuing immediately before and after giving effect to such Incremental Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) subject to Section 1.05, on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.18 in connection with such Incremental Commitments and the related transactions under this Section 2.23 and (iv) the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer of the Borrower to the effect set forth in clauses (i) and (ii) above, together with calculations demonstrating (A) compliance with Section 2.23(a) above (and a calculation of the “Maximum Incremental Amount” before and after giving effect to the establishment of such Incremental Commitments and the Incremental Facilities relating thereto) and (B) that Holdings shall be in compliance with the Financial Covenants 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, to give effect to the provisions of this Section 2.23.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the 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 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.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.23(e).
Appears in 1 contract
Sources: Credit Agreement (Trinet Group Inc)
Incremental Facilities. The i.
(a) At any time following the completion of the syndication of each of the Facilities and indicated by the Joint Lead Arrangers to the Borrower, the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) request an increase to the then existing Revolving Credit Facility Commitments (any each such increase, an “Incremental Revolving Facility Commitment”) or to the Term Loan A Facility Commitments (each such increase, an “Incremental Term Facility Commitment” and, together with the Incremental Revolving Facility Commitment, each an “Incremental Commitment”), in an aggregate principal amount, collectively, not to exceed U.S.$300 million. Any Borrowing under an Incremental Commitment shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than U.S.$10.0 million and shall be in the form of Term Loan A Loans or Revolving Facility Loans or a combination of Term Loan A Loans and Revolving Facility Loans (collectively, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan CommitmentsLoans”), by an amount not in excess of $500,000,000 in . Such notice shall specify the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify date (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or shall be made available (and, in the case of Incremental Term Loan Facility Commitments, as applicable, the date the Incremental Term Loans shall be effectivemade available), and which shall be a date not less than five (y5) 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 -3- writing of the identity of each Lender, Lender or other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, and in the case of any Person that is an Eligible Assignee committing to any Incremental Revolving Facility Commitment, reasonably acceptable to the Issuing Banks (each, an “Incremental Revolving Loan Facility Lender” or ”, an “Incremental Term Loan Lender”, or generally, an “Incremental Lender”, as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be have been (in accordance with the prior sentence) allocated and the amount amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date; and in the case of Incremental Term Loan Commitment. Any Facility Commitments, such new Loans in respect thereof (“Incremental Term Loans Loans”) shall be made on an such Increased Amount Date, provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments and Incremental Term Loans; (ii) the representations and warranties contained in Article III and the other Loan Documents shall be designated a separate series identified true and correct in all material respects on and as of the Increased Amount Date, except to the extent that such 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; (iii) the Incremental Loans shall rank pari passu in right of payment and of security with the Loans; (iv) such Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Administrative Agent and subject to the requirements set forth in Section 2.17(e); (v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Commitments; (vi) the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments or any Incremental Loans; (vii) any Incremental Loans shall be treated substantially the same as the existing Loans (in each case, including with respect to mandatory and voluntary prepayments); (viii) if the all-in yield (as reasonably determined by the year Administrative Agent and the Borrower to be equal to the sum of maturity (A) the margin above the Eurodollar Rate on such Incremental Loans, (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 or any Subsidiary for doing so but excluding any arrangement fees not paid to the Lenders thereof generally (the amount of such discount or fee, expressed as a percentage of the Incremental Loans, being referred to herein as “OID”), the amount of such OID (based on an assumed four year weighted average life) and (C) any minimum Alternate Base Rate or Adjusted Eurodollar Rate applicable to such Incremental Loans) (the “All-In Yield”) for any Incremental Loan exceeds the then applicable All-In Yield for the Term Loan A Loans or Revolving Facility Loans, as applicable, by more than 50 basis points (the excess of (A) such All-In Yield for the Incremental Loans over (B) the All-In Yield for the Term Loan A Loans or month Revolving Facility Loans, as applicable, plus 50 basis points being the relevant “Margin -4- Differential”), then each Applicable Margin for the Term Loan A Loans or Revolving Facility Loans, as applicable, for each adversely affected existing Facility shall automatically be increased by the Margin Differential effective upon the making of the Incremental Loan; and year if there are multiple (ix) except as otherwise provided in this clause (a), the terms and conditions applicable to Incremental Loans shall not be materially different from those of the Term Loan A Loans or Revolving Facility Loans, as applicable; provided that (A) the terms and conditions applicable to any tranche of Incremental Loans maturing after the Term Loan A Maturity Date or the Revolving Facility Maturity Date, as applicable, may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Term Loan A Maturity Date or the Revolving Facility Maturity Date, as applicable, and (B) the Incremental Loans may be priced differently than the existing applicable Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the same yearpreceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) (eachnecessary to reflect the existence and terms of the Incremental Commitments and the Incremental Loans evidenced thereby, a “Series”) and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments without the consent of any Lender. Notwithstanding the foregoing, the Borrower hereby agrees that the availability of Incremental Term Commitments shall be subject to the prior satisfaction of the following conditions: (x) each Loan Party shall have obtained all material consents necessary in connection with such Incremental Commitments and the transactions contemplated by the Sixth Amendment; and (y) the Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the applicable Increased Amount Date, favorable written opinions of (x) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special New York counsel for the Loan Parties, and (y) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, special Oklahoma counsel for the Loan Parties, (A) dated the applicable Increased Amount Date, (B) addressed to each Issuing Bank on the applicable Increased Amount Date, the Administrative Agent, the Collateral Agent and the Lenders, and (C) in form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Incremental Commitments and the Incremental Loans for all purposes of this Agreementas the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions.”
Appears in 1 contract
Sources: Credit Agreement
Incremental Facilities. The (a) So long as no Default or Event of Default has occurred and is continuing, the Borrower may requestrequest in writing that the then-effective aggregate Term A Commitments be increased and/or after the occurrence of the Funding Date, from time that one or more new tranches of term loans be established (each such new tranche of term loans being an “Incremental Term Facility”; any increase in the then-effective aggregate Term A Commitments and any Incremental Term Facility, an “Incremental Facility”), in an aggregate amount for all Incremental Facilities established after the Closing Date not to time, on any Business Day prior exceed $150,000,000. Any such request for an Incremental Facility shall (i) be submitted by the Borrower to the date that is sixty Lenders through the Administrative Agent not less than thirty (6030) days prior to the Stated Revolving Credit Termination Date proposed effective date of such Incremental Facility, (ii) specify the proposed effective date and amount of such Incremental Facility (which shall be no less than $25,000,000), and (iii) be accompanied by a certificate signed by an officer of the Borrower stating that no Default or Event of Default has occurred and is continuing as of the date of the request or will result from the requested Incremental Facility. The terms of any Incremental Term Facility shall be the same as the Term A Facility (it being understood and agreed, for the avoidance of doubt, that (A) the maturity date for any Incremental Term Facility shall be the Maturity Date, (B) the “applicable rate” for purposes of interest accruing on any Incremental Term Loans shall be determined by reference to the Applicable Rate, and (C) Incremental Term Loans made under any Incremental Term Facility shall not be subject to any scheduled amortization).
(b) Each Lender may accept or reject a request to participate in any Incremental Facility in its sole and absolute discretion and, absent an affirmative written notice response within thirty (30) days after receipt of such request, shall be deemed to have rejected the request. The rejection of such a request by any number of Lenders shall not affect the Borrower’s right to implement any Incremental Facility pursuant to this Section 2.16. In responding to a request hereunder, each Lender that is willing to participate in any Incremental Facility shall specify, in the case of any increase in the aggregate Term A Commitments, the amount by which it is willing to increase its existing Term A Commitment or, in the case of any Incremental Term Facility, the amount of the Incremental Term Loan it is willing to extend in connection with such Incremental Term Facility. Each accepting Lender shall be entitled to participate ratably (based on its Applicable Percentage of the Term A Facility before such Incremental Facility) in any Incremental Facility, subject in CHAR1\1928876v8 the case of an increase in the aggregate Term A Commitments, to the right of the Administrative Agent to adjust allocations of the increased aggregate Term A Commitments so as to result in the form attached hereto amounts of the Applicable Percentage of the Lenders being in integral multiples of $100,000 (it being understood that each accepting Lender shall have the option of agreeing or not agreeing to an allocation at a level that is higher than its Applicable Percentage before such increase).
(c) If the aggregate principal amount offered by the accepting Lenders is less than the amount requested, the Borrower may (i) reject the proposed Incremental Facility in its entirety, (ii) accept the offered amounts or (iii) designate new lenders which qualify as Exhibit G or in such other form Eligible Assignees and which are reasonably acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not as additional Lenders hereunder in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same yearaccordance with Section 2.16(e) (each, a “SeriesNew Lender”).
(d) After completion of the foregoing, the Administrative Agent shall give written notification to the Lenders and any New Lenders of the commitments for such Incremental Facility, which shall thereupon become effective upon compliance with the conditions precedent set forth in Section 2.16(f).
(e) Each New Lender shall become an additional party hereto as a Lender concurrently with the effectiveness of the proposed Incremental Facility upon its execution of an agreement that is in form and substance reasonably acceptable to the Administrative Agent and that, in any event, contains the representations, warranties, indemnities and other protections afforded to the Administrative Agent and the other Lenders that would be granted or made by an assignee by means of the execution of an assignment and assumption agreement. Upon becoming a party hereto, a New Lender shall have all rights and obligations of a Lender under this Agreement.
(f) Subject to the foregoing, any Incremental Facility requested under this Section 2.16 shall be effective as of the date proposed by the Borrower upon satisfaction of the following conditions precedent:
(i) execution and delivery by each Loan Party of such amendments to and reaffirmations of the Loan Documents as the Administrative Agent may reasonably request in connection with such Incremental Facility; provided, however, that, (A) the Administrative Agent shall be permitted to enter into any such amendment without the execution thereof or consent thereto by any of the Lenders so long as the purpose of such amendment is solely to incorporate appropriate provisions for an Incremental Facility as provided in this Section 2.16 and to make any technical or conforming changes required thereby, and (B) the Borrower shall procure that the holders of any Permitted Private Placement Debt execute and deliver to the Administrative Agent such amendments to any Intercreditor Agreement as the Administrative Agent may reasonably request relating to such Incremental Facility;
(ii) execution and delivery by each Loan Party to the Administrative Agent of a certificate certifying and attaching board resolutions adopted by each of them approving or consenting to such Incremental Facility; and
(iii) payment by the Borrower of all fees agreed among the Borrowers and the applicable Lenders (including the New Lenders) in connection with such Incremental Facility. CHAR1\1928876v8
(g) On the effective date of any Incremental Term Facility, each Incremental Term Lender under such Incremental Term Facility severally agrees to make an Incremental Term Loan to the Borrower in Dollars and in the amount of such Incremental Term Lender’s Incremental Term Commitment for such Incremental Term Facility. Incremental Term Borrowings prepaid or repaid may not be reborrowed. Incremental Term Loans for all purposes of this Agreement.may be Base Rate Loans or Term SOFR Loans, as further provided herein. Article III TAXES, YIELD PROTECTION AND ILLEGALITY
Appears in 1 contract
Sources: Credit Agreement (Parsons Corp)
Incremental Facilities. The Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days request prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increaseMaturity Date, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new incremental term loan commitments Commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 the Incremental Debt Cap in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $10,000,000 in the case of each such increase (or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between the Incremental Debt Cap and all such Incremental Term Loan Commitments obtained prior to such date, together with all Incremental Debt outstanding under Section 10.2.1(n)), and integral multiples of $5,000,000 individuallyin excess of that amount. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day date (each each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, 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 Administrative Agent or such shorter period of time as consented to by Administrative Agent and (yB) the identity of each Lender, or other Person that is an Eligible Assignee or other Person not then either a Lender or Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount amounts of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, discretion and any Lender or other Person approached to 84 provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Term Loan Commitment; provided, further, that each Lender and other Person that 85 Borrower proposes to become an Incremental Term Loan CommitmentLender must be reasonably acceptable to Administrative Agent. Such Incremental Term Loan Commitments shall become effective, as of such Increased Amount Date; provided that (1) (i) as of such Increased Amount Date (A) if such Class of Incremental Term Loans is being requested in connection with a Permitted Acquisition, no Event of Default under Sections 12.1(a) or (h) has occurred or is continuing or would immediately result therefrom, and (B) otherwise, no Default or Event of Default shall exist as of such date, or immediately result from such funding; and (ii) both immediately before and after giving effect to the making of any Class of Incremental Term Loans, the representations and warranties of each Obligor in the Loan Documents (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the Acquisition Agreement for such Permitted Acquisition) shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) (except for representations and warranties that expressly relate to an earlier date); (2) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Borrower, the Incremental Term Loan Lender and Administrative Agent, and each of which shall be recorded in the Register and each Incremental Term Loan Lender shall be subject to the requirements set forth in Section 5.9; (3) Borrower shall make any payments required pursuant to Section 3.9 in connection with the Incremental Term Loan Commitments; and (4) Borrower shall deliver or cause to be delivered any legal opinions, mortgage modifications or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date shall be be, at the election of the Administrative Agent (in consultation with the Borrower), designated as either part of the same Class of any existing Term Loans or a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) Class of Incremental Term Loans for all purposes of this Agreement.. On any Increased Amount Date, subject to the satisfaction of the foregoing terms and conditions,
(i) each Incremental Term Loan Lender of any Class of Incremental Term Loans shall make a Loan to Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class, and (ii) each Incremental Term Loan Lender of any Class of Incremental Term Loans 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. Administrative Agent shall notify Lenders promptly upon receipt of ▇▇▇▇▇▇▇▇’s notice of each Increased Amount Date and in respect thereof the Class of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Class of Incremental Term Loans. The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Class shall be as set forth herein or in the Joinder Agreement. In any event (i) 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 Loan or any other Class of Incremental Term Loans,
(ii) the applicable Maturity Date of each Class of Incremental Term Loans shall be no shorter than the latest of the final maturity of the Initial Term Loans or any other Class of Incremental Term Loans, (iii) the Weighted Average Yield applicable to the Incremental Term Loans of each Class shall be determined by Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the Weighted Average Yield applicable to the Incremental Term Loans shall not be greater than the applicable Weighted Average Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to any Loan plus 0.50% per annum unless the interest rate with respect to such Loan is increased so as to cause the then applicable Weighted Average Yield under this Agreement on such Loan to equal the Weighted Average Yield then applicable to the Incremental Term Loans less 0.50%, (iv) all Incremental Term Loans shall rank pari passu in right 86 of payment and security with the Initial Term Loans, (v) all other terms of the Incremental Term Loans and Incremental Term Loan Commitments, if not consistent with the terms of the Initial Term Loan, must be reasonably acceptable to Administrative Agent, but in no event, directly or indirectly, shall the covenants 87 or other provisions applicable to any Incremental Term Loan be more restrictive, or impose a more burdensome condition, on Borrower or its subsidiaries, or its or their assets, properties, business or operations than are provided for with respect to the Initial Term Loans unless (in each case, as certified by a Senior Officer of the Borrower in good faith) (A) the Lenders under the Initial Term Loan (or existing Incremental Term Loan) receive the benefit of the more restrictive terms (which, for avoidance of doubt, may be provided to them without their consent), (B) subject to clauses (i) through (vi) in this paragraph, such terms concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Incremental Term Loan or (C) such terms apply only after the applicable Maturity Date (it being understood to the extent that any financial maintenance covenant is added for the benefit of any such Incremental Term Loan, no consent shall be required from the Administrative Agent or Lenders to the extent that such financial maintenance covenant is also added for the benefit of the Initial Term Loan and any existing Incremental Term Loan existing at the time such subsequent Incremental Term Loan is incurred), and
Appears in 1 contract
Sources: Term Loan and Security Agreement (DXP Enterprises Inc)
Incremental Facilities. (a) The Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days request prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increaseTranche B Term Loan Maturity Date, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of the sum of (i) $500,000,000 100,000,000 in the aggregate so that minus the aggregate Commitments amount of Indebtedness incurred pursuant to Section 2.24(a)(i) (or any similar incremental “free and clear” basket) of the First Lien Credit Agreement 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 5.00:1.00 (assuming that Incremental Term Loans are not netted from Indebtedness for purposes of calculating such Consolidated Senior Secured Leverage Ratio); provided that no such Incremental Term Loan Commitments shall be in an aggregate amount less than $25,000,000 (except as shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $100,000,000 and all such Incremental Term Loan Commitments obtained prior to such date pursuant to clause (i) above), and integral multiples of $5,000,000 in excess of $1,000,000,000 and not less than $5,000,000 individuallythat amount. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day date (each 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 and (yB) the identity of each Lender, Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount amounts of such allocations; provided that Administrative Agent Barclays may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, discretion and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Term Loan Commitment. Such Incremental Term Loan CommitmentCommitments shall become effective as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of any Incremental Term Loans, each of the conditions set forth in Section 3.02 shall be satisfied; (3) Holdings shall be in pro forma compliance (calculated in accordance with the definition of Consolidated Adjusted EBITDA) with each of the covenants set forth in Section 6.07 as of the last day of the most recently ended Fiscal Quarter, after giving effect to such Incremental Term Loan Commitments, including any acquisitions consummated with the proceeds thereof or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Term Loan Commitments; (4) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Term Loan Lender, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Term Loan Commitments; (6) all other fees and expenses owing in respect of such increase to the Administrative Agent, the Collateral Agent and the Lenders will have been paid; (7) such Incremental Term Loan Commitments 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 may be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans or, if applicable, may constitute additional Term Loans of the Same Series as any then-existing Term Loans for all purposes of this Agreement.
(b) [Reserved]
(c) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of any Series shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto.
(d) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series.
(e) The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or 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. 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 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 other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent to effect the provisions of this Section 2.24.
Appears in 1 contract
Sources: Second Lien Credit and Guaranty Agreement (RadNet, Inc.)
Incremental Facilities. The (1) Subject to Sections 2.15(3) and 2.15(4), the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in from time to time (each such other form acceptable to the Administrative Agent (a notice an “Incremental Commitment Amount Increase Request”) at least five (5) Business Days prior elect to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) request the establishment of one or more new (x) additional first lien term loan commitments A credit facilities or increases in the aggregate maximum permitted Principal Outstanding under either or both Tranches of the Term A Facility (any such increasethe “Incremental Term A Commitments”), (y) additional first lien term B credit facilities or increases in the aggregate maximum permitted Principal Outstanding under the Term B Facility (the “Incremental Term B Commitments”; and collectively with the Incremental Term A Commitments, the “Incremental Term Loan Commitments” or (z) additional first lien revolving facilities or increases in the aggregate maximum permitted Principal Outstanding under the Revolving Facility (the “Incremental Revolving Facility Commitments”) and the Operating Facility (the “Incremental Operating Facility Commitment”; and collectively with the Incremental Term A Commitments, the Incremental Term B Commitments and the Incremental Operating Facility Commitment, the “Incremental Commitments”), by in an aggregate principal amount for all Incremental Commitments taken together not to exceed the greater of the following (the “Incremental Facility Limit”) (a) US$500 million and (b) an amount not such that, after giving effect to the incurrence of Debt under such Incremental Commitments pursuant to this clause (b) (and after giving pro forma effect to any acquisition consummated concurrently therewith and any other acquisition, disposition, debt incurrence, debt retirement and other appropriate pro forma adjustment events, including any Debt incurrence or repayment subsequent to the end of the applicable Test Period and on or prior to the date of such incurrence), the Borrower would be in excess of $500,000,000 in compliance, on a pro forma basis, with a First Lien Debt Leverage Ratio for the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not Test Period most recently ended equal to or less than $5,000,000 individually. 3.50:1.00.
(2) Each such Incremental Commitment Amount Increase Request shall identify (x) specify the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Commitment requested therein shall become effective. In connection with the incurrence of any Debt under this Section 2.15, the Borrower shall provide to the Administrative Agent a certificate certifying that the Incremental Commitments do not exceed the Incremental Facility Limit (which certificate shall be in reasonable detail and shall provide the calculations and basis therefor and classify such Debt as being incurred under clause (a) or clause (b) of the definition of “Incremental Facility Limit” (which classification may be reclassified) and that the conditions in Section 2.15(4) have been satisfied.
(3) The Lenders at the time of any request under Section 2.15(1) shall not be obliged to participate in any Incremental Facility and the Borrower may pursue and include new lenders to assist in funding any Incremental Commitments; provided that the addition of new lenders under such Incremental Facility shall be subject to:
(a) the consent of the Administrative Agent and, in the case of Incremental Revolving Facilities, each Issuing Bank under the Revolving Facility and the Swingline Lender;
(b) the provision by the Administrative Agent of notice of the submission by the Borrower of a request under Section 2.15(1) not less than five Business Days prior to the date of any increase in the aggregate Commitments;
(c) the execution and delivery by such new lenders of such accession or similar agreements as may be advised by Lenders’ Counsel in order that such new lenders shall be bound by the terms and conditions of this Agreement; and
(d) compliance by such lenders with such reasonable procedures as may established by the Administrative Agent in connection with the establishment of such Incremental Facility.
(4) The effectiveness of any Incremental Commitments shall be subject to the following conditions (the date upon which any Incremental Commitments become effective, the “Increased Amount Date”): (i) subject to “SunGard” conditions equivalent or similar to the Certain Funds Provisions in the case of any Incremental Commitments the proceeds of which will be used to fund an Acquisition or other similar material Investment permitted under the Credit Facility Documents, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) subject to “SunGard” provisions equivalent or similar to the Certain Funds Provisions in the case of any Incremental Commitments the proceeds of which will be used to fund an Acquisition or other similar Investment permitted under the Credit Facility Documents, all representations and warranties shall be true and correct in all material respects immediately prior to, and after giving effect to, the incurrence of such Incremental Commitments (provided that any representation and warranty that is qualified as to “materiality”, “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein)), (iii) the maturity date of any Incremental Term B Commitments shall be no earlier than the Initial Term B Maturity Date, (iv) the weighted average life to maturity of any Incremental Term B Commitments shall be no shorter than the weighted average life to maturity of the Initial Term B Commitments, (v) the interest margins for such Incremental Term B Commitments shall be determined by the Borrower and the lenders of such Incremental Term B Commitments; provided that in the event that the all in yield for any Incremental Term B Commitments is greater than the all in yield for the Initial Term B Commitments by more than 50 basis points (the “Yield Differential”), then the Applicable Margin for the Initial Term B Commitments shall be increased to the extent necessary so that the all in yield for such Incremental Term B Commitments is not more than 50 basis points higher than the all in yield for the Initial Term B Commitments, and (vi) any Incremental Revolving Facility Commitments shall be pursuant to documentation consistent with the Initial Revolving Facility Commitments and any Incremental Term Commitments shall be pursuant to documentation to be determined; provided that, to the extent such terms and documentation relating to any Incremental Term B Facility are not consistent with the Initial Term B Commitments (except to the extent permitted by clauses (iii), (iv) or (v) above), they shall be reasonably satisfactory to the Administrative Agent.
(5) For purposes of determining the interest margins applicable to the Incremental Term B Commitments and the Yield Differential for the Initial Term B Commitments, (A) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower for the account of the Initial Term B Lenders in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity), (B) customary arrangement or similar fees payable to the applicable lead arrangers (or their respective Affiliates) in connection with the Initial Term B Commitments or to one or more arrangers (or their Affiliates) of such Incremental Term Loan B Commitments shall be excluded and (C) if the Adjusted LIBOR or ABR floor for such Incremental Term B Commitments is greater than the Adjusted LIBOR or ABR floor, respectively, for the Initial Term B Commitments, the difference between such floor for such Incremental Term B Commitments and the Initial Term B Commitments shall be equated to an increase in the Applicable Margin to the extent an increase in the interest rate floor in such Initial Term B Commitments 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 such Initial Term B Commitments shall be increased by such increased amount.
(6) An amount not to exceed the then available unused capacity with respect to the incurrence of Debt under Incremental Commitments may, subject to compliance with the requirements set forth in clauses (i) through (iv) of Section 2.15(4) (except that (A) customary bridge facilities shall be permitted notwithstanding clauses (iii) and (iv) of Section 2.15(4) and (B) any such Debt that is secured on a pari passu basis with the Credit Facilities shall be in the form of notes), be used by the Borrower for the incurrence of Permitted Other Indebtedness, in each case (if secured) to be subject to a First Lien Intercreditor Agreement or a Second Lien Intercreditor Agreement, as applicable, ; provided that the Borrower shall be in pro forma compliance with the Financial Covenants after giving effect to the incurrence thereof; provided, further, that any such Permitted Other Indebtedness shall be deemed to be First Lien Obligations for the purposes of determining compliance with any future incurrence test, whether or not so secured (all such debt in this paragraph (6), “Incremental Equivalent Debt”).
(7) On any Increased Amount Date on which any Incremental Revolving Facility Commitments become effective, subject to the satisfaction of the foregoing terms and conditions of this Section 2.15, (ya) each of the identity of Revolving Lenders with Initial Revolving Facility Commitments shall assign to each Lender, or other Person that is Revolving Lender with an Eligible Assignee Incremental Revolving Facility Commitment (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”) and each Incremental Revolving Lender shall purchase from each of the Lenders with Initial Revolving Facility Commitments, at the principal amount thereof, such interests in the Loans outstanding thereunder on such Increased Amount Date as applicable)shall be necessary in order that, after giving effect to whom all such assignments and purchases, the Borrower proposes any portion Principal Outstanding under the Revolving Facility will be held by existing Revolving Lenders and Incremental Revolving Lenders rateably in accordance with their respective Revolving Facility Commitments after giving effect to the addition of such Incremental Revolving Credit Facility Commitments to the existing Revolving Facility Commitments, and (b) (i) each Incremental Revolving Facility Commitment shall be deemed for all purposes a Revolving Facility Commitment and (ii) each Incremental Revolving Lender shall become a Lender with respect to its Incremental Revolving Facility Commitment and all matters relating thereto; provided that (x) the Administrative Agent, the Swingline Lender and each Issuing Bank under the Revolving Facility shall have consented (not to be unreasonably withheld or delayed) to such Incremental Revolving Lender providing such Incremental Revolving Facility Commitment to the extent such consent, if any, would be required under Section 14.8 for an assignment of Revolving Facility Loans or Revolving Facility Commitments, as applicable, to such Incremental Revolving Lender and (y) with respect to any existing Bankers’ Acceptances and BA Equivalent Loans under the Revolving Facility which are outstanding on such Increased Amount Date, the above assignments and purchases will be deferred until the expiry of the applicable Interest Period(s) for such existing Bankers’ Acceptances and BA Equivalent Loans.
(8) On any Increased Amount Date on which any Incremental Term Commitments become effective, subject to the satisfaction of the foregoing terms and conditions of this Section 2.15, (a) each of the Term Lenders with Incremental Term Commitments shall make an Advance to the Borrower in an amount equal to its Incremental Term Commitment, and (ii) each Incremental Term Lender shall become a Lender hereunder with respect to its Incremental Term Commitment and the Advances thereunder made pursuant thereto.
(9) Incremental Revolving Facility Commitments shall be treated the same as the Class of Revolving Facility Commitments being increased (including with respect to the Maturity Date thereof) and shall be considered to be part of the Class of Revolving Facility being increased.
(10) Incremental Term A Commitments shall be treated the same as the Class of Term A Commitments being increased (including with respect to the Maturity Date thereof) and shall be considered to be part of the Class of Term A Facility being increased.
(11) The terms and provisions of Incremental Term Loans and Incremental Term Loan Commitments of any Class shall be on terms and documentation set forth in the applicable Extension/Incremental/Refinancing Amendment as determined by the Borrower; provided that such terms comply with the requirements of Section 2.15(4) to the extent applicable. Any Incremental Revolving Facility Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall shall, at the election of the Borrower and agreed to by the Lenders providing such Incremental Revolving Facility Commitments or Incremental Term Commitments, be designated as (a) a separate series identified by the year Class (of maturity of such Incremental Term Loans for all purposes of this Agreement or (or month and year if there are multiple Incremental b) part of a Class of existing Term Loans maturing in the same year) (each, a “Series”) of Incremental Term or Revolving Loans for all purposes of this Agreement.
(12) The Borrower shall provide a certificate of a Senior Officer delivered to the Administrative Agent at least five Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the Increase Amount Date for any Incremental Facility, together with a reasonably detailed description of the material terms and conditions of such Incremental Facility or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the applicable requirements of this Section 2.15.
(13) Each Extension/Incremental/Refinancing Amendment Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Facility Documents as may be necessary or appropriate, in the opinion of the Agents, to effect the provisions of this Section 2.15.
Appears in 1 contract
Sources: Restated Credit Agreement (Maxar Technologies Ltd.)
Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) during the Availability Period, the establishment of Incremental Revolving Commitments, (ii) an increase to in the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (iiiii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of being requested. The Borrower may arrange for any such allocations; provided that Administrative Agent may elect or decline to arrange such Revolving Commitment increase, Incremental Revolving Credit Commitments or Incremental Term Loan Commitments to be provided by one or more Lenders or by one or more new banks, financial institutions or other entities to increase their existing Revolving Commitments, or to participate in its sole discretionsuch Incremental Term Loans, and or extend Revolving Commitments, as the case may be (it being agreed that (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide an such Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment, (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender or an Affiliate of a Lender, must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Banks and the Swingline Lender and (z) none of the Persons described in the foregoing clauses (x) and (y) may be an Ineligible Institution). Notwithstanding anything herein to the contrary, the aggregate principal amount of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20 shall not exceed $75,000,000.
(b) The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be substantially identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the Maturity Date (but may have amortization and/or customary prepayments prior to such date), (ii) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and (iii) shall have the same Guarantees as and shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Revolving Loans (except in the case of clause (ii) and (iii) to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent); provided that (x) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (y) the Incremental Term Loans may be priced differently (whether in the form of interest rate margin, upfront fees, original issue discount, call protection or otherwise) than the Revolving Loans. Subject to the preceding sentence, the other terms of the Incremental Term Loans (including interest, fees and amortization) shall be as otherwise agreed among the Borrower, the Administrative Agent and the Incremental Lenders providing such Incremental Term Loan Commitments. Any Incremental Term Loan Commitments established pursuant to an Incremental Facility Agreement that have substantially identical terms and conditions, and any Incremental Term Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) The Incremental Commitments shall be effected pursuant to 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, 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, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be true and correct in all material respects (or, if qualified by Material Adverse Effect or other materiality qualification, in all respects) as of such earlier 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 Cash Equivalents in the calculation of the Senior Secured Net Leverage Ratio), the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.12, (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 2.20, 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 Loans, no Specified Event of Default is in existence shall have occurred and be continuing 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, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be true and correct in all material respects (or, if qualified by Material Adverse Effect or other materiality qualification, in all respects) as of such earlier date, (4) as of the date of the borrowing of such Incremental Term Loans, customary “SunGard” or “certain funds” representations and warranties (with such representations and warranties to be reasonably determined by the Lenders providing such Incremental Term Loans) shall be true and correct in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) immediately after giving effect to, the incurrence of such Incremental Term Loans, except in the case of any such representation and warranty that expressly relates to an earlier date, in which case such representation and warranty shall be true and correct in all material respects (or, if qualified by Material Adverse Effect or other materiality qualification, in all respects) as of such earlier date, 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 6.12. 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 2.20 and no consent of any Lender (other than the Lenders participating in the increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Revolving Commitments or Incremental Term Loan Commitments, at any time.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving 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 Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders with Revolving Commitments ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Loan Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement.
(g) 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 Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to paragraph (e) above.
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Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in Agent, request the form attached hereto as Exhibit G or in such other form acceptable to establishment of Incremental Term Commitments; provided that the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective aggregate amount of all Incremental Term Loan Commitments established on any date of such increase (the “Commitment Amount Increase”) shall not exceed (i) (together with the amount of Alternative Incremental Debt established on such date in reliance on the Base Incremental Amount) an increase amount equal to the then existing Revolving Credit Commitments (any Base Incremental Amount on such increase, the “Incremental Revolving Credit Commitments”) and/or date and (ii) an additional amount subject to the establishment Maximum Incremental Amount as of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individuallydate. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit Term Commitments or 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (yB) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or the Incremental Term Loan Commitments in its sole discretion, and being requested (it being agreed that (x) any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or any Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide an such Incremental Revolving Credit Term Commitment or and (y) any Person that the Borrower proposes to become an Incremental Term Loan CommitmentLender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent). Any Notwithstanding anything to the contrary herein, no Incremental Term Commitments may be established during the Senior Period.
(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 in the applicable Incremental Facility Agreement, identical to those of the 2018 Term Loan Commitments and the Term B Loans; provided that (i) the interest rate margins with respect to any Incremental Term Loans shall be as agreed by the Borrower and the lenders in respect thereof; provided, that if the total yield (calculated, for both the Incremental Term Loans and the Term B Loans, to include upfront fees, any interest rate floors and any original issue discount (with original issue discount being equated to interest rate in a manner determined by the Administrative Agent based on an Increased Amount Date assumed four-year life to maturity) but to exclude any arrangement, underwriting or similar fee paid by the Borrower) in respect of any Incremental Term Loans exceeds the total yield for the existing Term B Loans by more than 0.50%, the Applicable Rate for the Term B Loans shall be designated increased so that the total yield in respect 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, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Rate for the 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 (but not the 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 separate series identified term loan under then-existing market convention, (iii) the amortization schedule with respect to any Incremental Term Loans shall be as agreed by the year Borrower and the lenders in respect thereof, provided that the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Latest Maturing Term Loans outstanding immediately prior to the establishment of such Incremental Term Loans (or month and year if there are multiple other than as necessary to make any such Incremental Term Loans maturing 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 Term Loans may add additional covenants or events of default not otherwise applicable to the Term B Loans or covenants more restrictive than the covenants applicable to the Term B Loans in each case prior to the Latest Maturity Date in effect immediately prior to the establishment of such Incremental Facility so long as this Agreement is amended to provide all of the Lenders with the benefits of such additional covenants, events of default or more restrictive covenants, (vi) 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 case, as otherwise permitted pursuant to this paragraph (b)), such terms shall be reasonably satisfactory to the Administrative Agent, and (vii) any Incremental Term Loans shall have the same year) Guarantees as, and shall rank pari passu with respect to the Liens on the Collateral and in right of payment with, the Term B Loans. 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, 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 Facilities (including any Extended Term Loans or Replacement Term Loans).
(c) 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 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, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Term Commitment of any Incremental Term Lender, such Incremental Term Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents.
(e) 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.
(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.
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Incremental Facilities. The Borrower may request, (a) At any time during the period from time to time, on any Business Day prior to and after the Closing Date through but excluding the date that is sixty the Maturity Date, at the option of Borrowers (60) days prior but subject to the Stated Revolving Credit Termination Date conditions set forth in Section 2.14(b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by written notice an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by ▇▇▇▇▇▇▇▇▇, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $25,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than two occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Administrative Agent Revolver Commitments exceed $200,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) connection therewith:
(i) an increase to Agent or Borrowers have obtained the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment commitment of one or more new term loan commitments Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such increaseLenders (or prospective lenders), the Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Incremental Term Loan CommitmentsIncrease Joinder”), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party,
(ii) each of the conditions precedent set forth in Section 3.2 are satisfied,
(iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by an the Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Board of Governors,
(iv) Borrowers have delivered to Agent updated pro forma Projections (after giving effect to the applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the 12 months (on a month-by-month basis) immediately following the proposed date of the applicable Increase, and
(v) the interest rate margins with respect to the Revolving Loans to be made pursuant to the increased Revolver Commitments shall be the same as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the applicable Increase Date (as defined below).
(c) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14.
(d) Each of the Lenders having a Revolver Commitment prior to the Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount not in excess of $500,000,000 thereof, such interests in the aggregate so Revolving Loans and participation interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments.
(e) The Revolving Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the aggregate Commitments are not in excess of $1,000,000,000 Liens and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified security interests granted by the year Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of maturity of any such Incremental Term Loans (or month new Revolver Commitments and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this AgreementMaximum Revolver Amount.
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Sources: Credit Agreement
Incremental Facilities. (a) The Parent Borrower and any one or more Lenders (including New Lenders) may request, from time to timetime agree that such Lenders shall make, on obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any Business Day prior to the date that is sixty (60) days prior to the Stated such increased Revolving Credit Termination Date Commitments, “Incremental Revolving Commitments”), as applicable, by written notice executing and delivering to the Administrative Agent in an Incremental Facility Activation Notice specifying (i) the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date amount of such increase (and the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increaseFacility or Facilities involved, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment applicable Incremental Facility Closing Date and (iii) in the case of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”)Loans, by an amount not in excess of $500,000,000 in (w) the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify applicable Incremental Term Maturity Date, (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or amortization schedule for such Incremental Term Loan Commitments, as applicable, shall be effective, Loans and (y) the identity Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of each Lender, or other Person that is an Eligible Assignee (each, an “all Incremental Term Loans and Incremental Revolving Loan Lender” Commitments, together with the aggregate principal amount of any Incremental Equivalent Debt and the outstanding principal amount (or committed amount, if applicable) of any Term Loans or Revolving Commitments, shall not exceed the greater of (x) $2,000,000,000 and (y) an “amount such that, on a pro forma basis, after giving effect to the incurrence of such Indebtedness (and after giving effect to any transaction to be consummated in connection therewith and assuming that, in the case of Incremental Revolving Commitments, all such Incremental Revolving Commitments are fully drawn), the Consolidated Secured Leverage Ratio, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available, is less than or equal to 3.25:1.00; provided that, with respect to any Incremental Term Loan Lender”Loans or Incremental Revolving Commitments being incurred to finance a Limited Condition Acquisition for which the Parent Borrower has made an LCA Election, the relevant date for such determination of the Consolidated Secured Leverage Ratio shall be the LCA Test Date in accordance with Section 1.5;
(B) as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to any Incremental Facility Activation Notice (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no Event of Default has occurred and is continuing or shall result therefrom; provided that, with respect to any Incremental Term Loans or Incremental Revolving Commitments being incurred to finance a Limited Condition Acquisition for which the Parent Borrower has made an LCA Election, the relevant date for such determination shall be the LCA Test Date in accordance with Section 1.5 (provided that, if agreed by the Lenders providing such Incremental Term Loans or Incremental Revolving Commitments, then at the written election of the Parent Borrower, this condition shall require only the absence of any Event of Default under Section 8(a) and Section 8(f));
(C) the Parent Borrower shall be in compliance, as applicableof any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable 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 Incremental Facility Activation Notice with respect to Incremental Revolving Commitments that such commitments are fully drawn) and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available; provided that, with respect to whom any Incremental Term Loans or Incremental Revolving Commitments being incurred to finance a Limited Condition Acquisition for which the Parent Borrower proposes has made an LCA Election, the relevant date for such determination shall be the LCA Test Date in accordance with Section 1.5;
(D) each of the representations and warranties made by any portion 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) as of the applicable Incremental Facility Activation Date, immediately prior to and after giving effect to the applicable Incremental Facility Activation Notice (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; provided that, with respect to any Incremental Term Loans or Incremental Revolving Commitments being incurred to finance a Limited Condition Acquisition for which the Parent Borrower has made an LCA Election, the relevant date for such determination shall be the LCA Test Date in accordance with Section 1.5 (provided that, if agreed by the Lenders providing such Incremental Term Loans or Incremental Revolving Commitments, then at the written election of the Parent Borrower, 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));
(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 Tranche A Term Facility; provided, that this clause (E) shall not apply to the Incremental Term Loans incurred on the Second Amendment Effective Date;
(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 Tranche A Term Loans and the Revolving Loans;
(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 Tranche A Term Facility, shall be reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any prepayments of the applicable Tranche A Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline Revolving Loans in respect thereof shall be pursuant to arrange the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Credit Commitments or shall become Revolving Commitments under this Agreement after giving effect to such Incremental Term Loan Commitments Facility Activation Notice;
(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 $20,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Fourth 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 additional bank, and any Lender approached to provide all financial institution or a portion other entity which, with the consent of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or declineParent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date connection with any transaction described in Section 2.25(a) shall be designated execute a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) New Lender Supplement (each, a “SeriesNew Lender Supplement”), substantially in the form of Exhibit G-3, whereupon such bank, financial institution or other entity (a “New Lender”) of Incremental Term Loans shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each 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 Term Benchmark Loans, of each Term Benchmark Tranche) which would then have been outstanding from such Lender if (i) each such Type or Term Benchmark Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type or Term Benchmark Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Term Benchmark Rate applicable to any Term Benchmark Loan borrowed pursuant to the preceding sentence shall equal the Term Benchmark Rate then applicable to the Term Benchmark Loans of the other Lenders in the same Term Benchmark 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) 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.
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Incremental Facilities. The Borrower may request, (a) At any time during the period from time to time, on any Business Day prior to and after the Closing Date through but excluding the date that is sixty the 3 year anniversary of the Closing Date, at the option of Borrowers (60) days prior but subject to the Stated Revolving Credit Termination Date conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by written notice an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an "Increase"). Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, and if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $5,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount to be increased pursuant to this Section 2.14 on more than 2 occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Administrative Agent Revolver Commitments exceed $10,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) connection therewith:
(i) an increase to Agent or Borrowers have obtained the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment commitment of one or more new term loan commitments Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such increaseLenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an "Increase Joinder"), in form and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party,
(ii) each of the conditions precedent set forth in Section 3.2 are satisfied,
(iii) in connection with any Increase, if any Loan Party or any of its Subsidiaries owns or will acquire any Margin Stock, Borrowers shall deliver to Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrowers, together with such other documentation as Agent shall reasonably request, in order to enable Agent and the Lenders to comply with any of the requirements under Regulations T, U or X of the Federal Reserve Board,
(iv) Borrowers have delivered to Agent updated Projections (after giving effect to the applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a basis with Section 7 for the twelve months (on a month- by-month basis) immediately following the proposed date of the applicable Increase, and
(v) The interest rate margins with respect to the Revolving Loans to made pursuant to the increased Revolver Commitments shall be the same as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the applicable Increase Date (as defined below) (the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount, the “Incremental Term "Increase Date"). Any Increase Joinder may, with the consent of Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Commitments”)Documents as may be necessary to effectuate the provisions of this Section 2.14.
(c) Unless otherwise specifically provided herein, by an amount not (i) all references in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 this Agreement and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental any other Loan Document to Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, Loans shall be effectivedeemed, and (y) unless the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable)context otherwise requires, to whom the Borrower proposes any portion of such Incremental include Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased pursuant to the increased Revolver Commitments and Maximum Revolver Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement.pursuant to this
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Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one Incremental Term Commitments, provided that the sum of the cumulative aggregate original amount of all the Incremental 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 Commitments under this Section or more new term loan commitments (the date of issuance of any such increaseAlternative Incremental Facility Indebtedness, as the “case may be, exceed the Maximum Incremental Term Loan Commitments”), by an amount not Amount in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individuallyeffect on such date. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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, (1) if such Person is not then a Lender, must be an Eligible Assignee and (2) in the case of an Incremental Revolving Credit Commitment, must be reasonably acceptable to the Administrative Agent, each Issuing Bank and the Swingline Lender).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that (x) the maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date and (y) the upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Borrower and the Incremental Revolving Lenders providing such Incremental Facility. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or an in the applicable Incremental Facility Amendment, identical to those of the Term Commitments and the Term Loans; provided that (i) the upfront fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) the weighted average life to maturity of any such Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the existing Term Loans with the longest remaining weighted average life to maturity at such time; provided that Term Loans (including any Incremental Term Loans) in a principal amount not to exceed $200,000,000 in the aggregate may have a weighted average life to maturity shorter than the remaining weighted average life to maturity of the existing Term Loans with the longest remaining weighted average life to maturity at such time, (iii) if the weighted average yield relating to any Incremental Term Loan Commitmentexceeds the weighted average yield relating to the Tranche B Term Loans outstanding immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% (to be determined by the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (but only to the extent that an increase in the interest rate floor applicable to the Tranche B Term Loans would result in an increase in an interest rate then in effect for the Tranche B Term Loans hereunder)), then the Applicable Rate (A) relating to the Tranche B Term Loans shall be adjusted so that the weighted average yield relating to such Incremental Term Loans shall not exceed the weighted average yield relating to the Tranche B Term Loans by more than 0.50% and (B) relating to the Tranche A Term Loans shall be adjusted to the same extent as the Applicable Rate relating to the Tranche B Term Loans required by subclause (b)(iii)(A) of this Section; provided that, in the case of the Tranche B Term Loans only, any greater interest rate floor applicable to such Incremental Term Facility will, if requiring an adjustment hereunder, be reflected as an increase to the interest rate floor applicable to the Tranche B Term Loans rather than being reflected in an adjustment to the Applicable Rate and (iv) any such Incremental Term Facility will mature no earlier than the latest Maturity Date applicable to any existing Term Loans at such time; provided that Term Loans (including any Incremental Term Loans) in a principal amount not to exceed $200,000,000 in the aggregate may mature earlier than the latest Maturity Date applicable to any existing Term Loans at such time, but in no event shall any Term Loan mature earlier than three years after the Restatement Effective Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Amendment that have identical terms and conditions, and any Incremental Term Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, 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 other Loan Document Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by 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) 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 (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section and (iv) 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 of the Borrower to the effect set forth in clauses (i) and (ii) 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, in the opinion of the Administrative Agent, 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 Commitments voting 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 Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. 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 loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e).
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Incremental Facilities. (a) The Borrower Company may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments in respect of the Global Tranche Commitments and/or the US Tranche Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower Company proposes that the Incremental Revolving Credit Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide an such Incremental Revolving Credit Commitment or an Incremental Term Loan CommitmentCommitment and (y) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Banks and the Swingline Lender). Any Incremental Term Loans made Notwithstanding anything herein to the contrary, the aggregate Dollar Amount (calculated based on an Increased the Dollar Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing Indebtedness on the date such Indebtedness was incurred, in the same year) (each, a “Series”) case of Incremental Term Loans for Loan Commitments, or first committed, in the case of Incremental Revolving Commitments) of all purposes 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 this Agreement.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
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Incremental Facilities. (a) The Lead Borrower may requestmay, from time to at any time, on one or more occasions pursuant to an Incremental Facility Agreement increase the aggregate amount of Commitments of any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date existing Class of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the an “Incremental Revolving Credit CommitmentsFacility” and the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Revolving Commitment may be less than $5,000,000,
(ii) except as separately agreed from time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental Revolving Commitment, and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender,
(iii) 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 a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan,
(iv) the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility,
(v) Except as otherwise agreed by the lenders providing the relevant Incremental Facility in connection with a Permitted Acquisition or other Investment permitted by the terms of this Agreement, no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility,
(vi) the proceeds of any Incremental Revolving Facility may be used for working capital and other general corporate purposes and any other use not prohibited by this Agreement, and
(vii) at no time shall there be more than three separate Maturity Dates in effect with respect to any existing Additional Revolving Facility at any time.
(b) Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and any Issuing Bank shall have consented (such consent not to be unreasonably withheld) to the relevant Additional Revolving Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender.
(c) Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Agreement) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Revolving Commitment. On the effective date of such Incremental Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As a condition precedent to the effectiveness of any Incremental Revolving Facility or the making of any Incremental Revolving Loans, (i) upon its reasonable request, the Administrative Agent shall have received customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the establishment Administrative Agent shall have received, from each Additional Revolving Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Additional Revolving Lender, (iii) the Administrative Agent and Lenders shall have received all fees required to be paid in respect of one such Incremental Revolving Facility or more new term loan commitments Incremental Revolving Loans and (any iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such increaseIncremental Revolving Facility or Incremental Revolving Loans, and
(B) to the “Incremental Term Loan Commitments”)extent applicable, by an amount not in excess of $500,000,000 in the aggregate so certifying that the aggregate Commitments are not condition set forth in excess clause (a)(x) above has been satisfied.
(i) Each Lender of $1,000,000,000 the applicable class immediately prior to such increase will automatically and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (without further act be deemed to have assigned to each an “Increased Amount Date”) on which the Borrower proposes that the relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding US Letters of Credit, Canadian Letters of Credit Commitments or and/or European Letters of Credit, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ (including each Incremental Term Loan CommitmentsRevolving Facility Lender) participations hereunder in US Letters of Credit, Canadian Letters of Credit and/or European Letters of Credit, as applicable, shall be effectiveheld on a pro rata basis on the basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other Lenders of such Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (y) including the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); 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) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Agreement and any other amendments to this Agreement and the other Loan Lender” Documents with the Loan Parties as may be necessary in order to establish new tranches or sub tranches in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrowers in connection with the establishment of such new tranches or sub tranches, in each case on terms consistent with this Section 2.22.
(g) Notwithstanding to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of effectiveness of any Incremental Revolving Facility are intended to be applied to finance an “Incremental Term Loan Lender”, as applicable), to whom acquisition and the Borrower proposes any portion of Lenders or Additional Lenders providing such Incremental Revolving Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality consisting of an increase in an existing Commitment, the sublimits applicable to Letters of Credit Commitments or Incremental Term Loan Commitmentsshall increase by an amount, as applicableif any, be allocated agreed upon by Administrative Agent, the Issuing Banks and the amount of such allocations; provided that Administrative Agent may elect Lead Borrower.
(h) This Section 2.22 shall supersede any provision in Section 2.18 or decline 9.02 to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreementcontrary.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may request, from time to time, on time after the Closing Date elect to increase the Revolving Commitments or any Business Day prior to the date that is sixty (60) days prior to the Stated Extended Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Increased Commitments”) and/or (ii) the establishment of or obtain one or more new tranches of (or increase any existing tranche of) term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not loans denominated in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee Dollars (each, an “Incremental Term 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 the Administrative Agent may agree), in the case of Incremental Term Loans so long as, after giving effect thereto, the aggregate amount of all such Increased Commitments and all such Incremental Term Loans (other than Refinancing Term Loans and Refinancing Revolving Loan Lender” Commitments) does not exceed $300,000,000 less the aggregate principal amount of Incremental Equivalent Indebtedness 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, or to participate in such Incremental Term Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, a “New Lender”), to 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 case may be; provided that each New Lender (and, in the case of an Increased Commitment, each Increasing Lender) shall be subject to the approval of the Borrower and, to the extent such consent would be required under Section 9.04 for an assignment to such New Lender, 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 Lenders other than the relevant Increasing Lenders or New Lenders, this Agreement and the other Loan Lender”Documents may be amended pursuant to an Additional Credit Extension 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 and the relevant Increasing Lenders or New Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving 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 whom 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 proposes 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, 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 Incremental Increased Commitments, the principal balance of all outstanding Revolving Credit Commitments or 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, 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 Loan Commitments, Loans shall be as applicable, be allocated and set forth in the amount of Additional Credit Extension Amendment providing for such allocationsIncremental Term Loans; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (i) the final maturity date of any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by no earlier than the year of maturity 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, (or month and year if there are multiple iii) Incremental Term Loans maturing shall not participate on a greater than pro rata basis with the Term Loans in any mandatory prepayment hereunder (except in the same yearcase of incurrence of Refinancing Indebtedness in respect thereof), (iv) (eachthe provisions with respect to payment of interest, a “Series”) of original issue discount and upfront fees shall be as set forth in the amendment providing for such Incremental Term Loans for and (v) all purposes 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 this Agreementthe 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.
(b) This Section 2.19 shall override any provisions in Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Cable One, Inc.)
Incremental Facilities. The Borrower may request, from time Pursuant to timeSection 2.20 of the Credit Agreement, on any Business Day and as of the Increase Effective Date:
(a) Each 2018 Incremental Lender that is not, prior to the date effectiveness of this Agreement, a Term Loan Lender under the Credit Agreement, hereby agrees that upon, and subject to, the occurrence of the Increase Effective Date, such 2018 Incremental Lender shall be deemed to 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 is sixty (60) days prior equal to the Stated Revolving Credit Termination Date by written notice amount set forth opposite such 2018 Incremental Lender’s name under the heading “2018 Incremental Term Loan Commitments” on Schedule 2.01(a) to the Administrative Agent in the form attached hereto this Agreement (such commitment hereinafter referred to as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “2018 Incremental Term Loan Commitments”). Each Credit Party and the Administrative Agent hereby agree that from and after the Increase Effective Date, by an 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 Agreement and the other Loan Documents.
(b) Each 2018 Incremental Lender hereby agrees to make 2018 Incremental Term Loans to the Borrower on the Increase Effective Date in a principal amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or to exceed its respective 2018 Incremental Term Loan Commitments, as applicable, shall be effective, and (yCommitment set forth on Schedule 2.01(a) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement.
(c) Section 1.01 of the Credit Agreement is hereby amended by inserting the following new definitions in the appropriate alphabetical order therein:
Appears in 1 contract
Sources: Incremental Facility Assumption Agreement (Dragoneer Growth Opportunities Corp. II)
Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one Incremental Term Commitments, provided that the sum of the cumulative aggregate original amount of all the Incremental 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 Commitments under this Section or more new term loan commitments (the date of issuance of any such increaseAlternative Incremental Facility Indebtedness, as the “case may be, exceed the Maximum Incremental Term Loan Commitments”), by an amount not Amount in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individuallyeffect on such date. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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, (1) if such Person is not then a Lender, must be an Eligible Assignee and (2) in the case of an Incremental Revolving Credit Commitment, must be reasonably acceptable to the Administrative Agent, each Issuing Bank and the Swingline Lender).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that (x) the maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date and (y) the upfront fees applicable to any Incremental Revolving Facility shall be as determined by the Borrower and the Incremental Revolving Lenders providing such Incremental Facility. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or in the applicable Incremental Facility Amendment, identical to those of the Term Commitments and the Term Loans; provided that (i) the upfront fees, interest rates and amortization schedule applicable to any Incremental Term Facility and Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders providing the relevant Incremental Term Commitments, (ii) except in the case of an Incremental Term Facility effected as an increase to an existing Class of Term Loans, the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Terms Loans with the latest Maturity Date, (iii) if the weighted average yield relating to any Incremental Term Loan Commitmentexceeds the weighted average yield relating to the Tranche B-2 Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50% (to be determined by the Administrative Agent consistent with generally accepted financial practices, after giving effect to margins, upfront or similar fees, or original issue discount, in each case shared with all lenders or holders thereof and applicable interest rate floors (but only to the extent that an increase in the interest rate floor applicable to the Tranche B-2 Term Loans would result in an increase in an interest rate then in effect for the Tranche B-2 Term Loans hereunder)), then the Applicable Rate (A) relating to the Tranche B-2 Term Loans shall be adjusted so that the weighted average yield relating to such Incremental Term Loans shall not exceed the weighted average yield relating to the Tranche B-2 Term Loans by more than 0.50% and (B) relating to the Tranche B-1 Term Loans shall be adjusted to the same extent as the Applicable Rate relating to the Tranche B-2 Term Loans required by subclause (b)(iii)(A) of this Section; provided that, in the case of the Tranche B-2 Term Loans only, any greater interest rate floor applicable to such Incremental Term Facility will, if requiring an adjustment hereunder, be reflected as an increase to the interest rate floor applicable to the Tranche B-2 Term Loans rather than being reflected in an adjustment to the Applicable Rate and (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 on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, 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 other Loan Document Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Amendments executed and delivered by 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) 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 (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be so true and correct on and as of such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental Commitments and the related transactions under this Section and (iv) 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 of the Borrower to the effect set forth in clauses (i) and (ii) 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, in the opinion of the Administrative Agent, 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 Commitments voting 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 Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. 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 loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Amendment.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e).
Appears in 1 contract
Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so provided that the aggregate amount of all the Incremental Commitments are established hereunder shall not in excess of exceed $1,000,000,000 and not less than $5,000,000 individually500,000,000. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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 and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Credit Lender, each Issuing Bank and the Swingline Lender).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that (i) the maturity date of any Incremental Revolving Commitments shall be no sooner than, but may be later than, the Revolving Maturity Date, (ii) there shall be no mandatory reduction of any Incremental Revolving Commitments prior to the Revolving Maturity Date and (iii) the up-front fees applicable to any Incremental Revolving Facility shall be as determined by the Borrower and the Incremental Revolving Lenders providing such Incremental Facility. The terms and conditions of any Incremental Term Facility and the Incremental Term Loans to be made thereunder shall be, except as otherwise set forth herein or an in the applicable Incremental Facility Agreement, identical to those of the Term Commitments and the Term Loans; provided that (i) 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 Loans shall be no shorter than the remaining weighted average life to maturity of the Terms Loans and (iii) no Incremental Term Loan CommitmentMaturity Date shall be earlier than the 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. Any Incremental Term Facilities established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, each a “Series”) of Incremental 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 be secured by the Collateral on a pari passu basis with the other Loan Document Obligations.
(c) The Incremental Commitments and Incremental Facilities relating thereto shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the 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) 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 (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, 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 Commitments voting 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 Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. 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 Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement.
(g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the Borrower referred to in Section 2.21(a) and of the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.21(e) .
Appears in 1 contract
Sources: Credit Agreement (NCR Corp)
Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in and with the form attached hereto as Exhibit G or in such other form acceptable to consent of the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to and the desired effective date of such increase (the “Commitment Amount Increase”) Incremental Lenders, request (i) an increase during the period from and including the Restatement Effective Date to but not including the then existing Revolving Credit Maturity Date (or any earlier date on which the Commitments (any such increasehave been terminated as provided herein), the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments Incremental Term Commitments, provided that the aggregate principal amount of all the Incremental Commitments established hereunder shall not exceed $500,000,000 (any such increase, the “Incremental Term Loan CommitmentsCommitted Amount”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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 Credit Commitment or an and loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made hereunder, and shall be treated as a single class with such Revolving Commitments and Loans. The terms and conditions of any Incremental Term Loan CommitmentCommitments 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 made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Credit Agreement. 57 [[5731659]]
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental 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 on such date, (ii) on the date of effectiveness thereof, the representations and warranties of the Borrower 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 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, (iv) the Borrower shall make any payments required to be made pursuant to Section 3.14 in connection with such Incremental Commitments and the related transactions under this Section and (v) the Borrower shall have delivered 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, 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 Credit Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) in the case of an Incremental Lender that does not already have a Revolving Commitment, such Incremental Revolving Commitment shall constitute the Revolving Commitment of such Incremental Lender and (B) in the case of an Incremental Lender that already has a Revolving Commitment, the Revolving Commitment of such Incremental Lender shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Incremental Revolving Commitment, and the Revolving Loan Commitment 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, 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) [[5731659]] 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 Agent of any notice from the Borrower referred to in 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 effectiveness of any Incremental Revolving Commitments, of the Revolving Loan Commitment Percentages of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.7(e).
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and any one or more Lenders (including New Lenders) may request, from time to timetime agree that such Lenders shall make, on obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any Business Day prior to the date that is sixty (60) days prior to the Stated such increased Revolving Credit Termination Date Commitments, “Incremental Revolving Commitments”), as applicable, by written notice executing and delivering to the Administrative Agent in an Incremental Facility Activation Notice specifying (i) the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date amount of such increase (and the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increaseFacility or Facilities involved, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment applicable Incremental Facility Closing Date and (iii) in the case of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”)Loans, by an amount not in excess of $500,000,000 in (w) the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify applicable Incremental Term Maturity Date, (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or amortization schedule for such Incremental Term Loan Commitments, as applicable, shall be effective, Loans and (y) the identity Applicable Margin for such Incremental Term Loans; provided, that:
(A) the aggregate principal amount (or committed amount, if applicable) of each Lender, or other Person that is an Eligible Assignee (each, an “all Incremental Term Loans and Incremental Revolving Loan Lender” Commitments, together with the aggregate principal amount of any Incremental Equivalent Debt and the outstanding principal amount (or committed amount, if applicable) of any Term Loans or Revolving Commitments, shall not exceed the greater of (x) $1,425,000,000 and (y) an “amount such that, on a pro forma basis, after giving effect to the incurrence of such Indebtedness (and after giving effect to any transaction to be consummated in connection therewith and assuming that, in the case of Incremental Revolving Commitments, all such Incremental Revolving Commitments are fully drawn), the Consolidated Secured Leverage Ratio, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available, is less than or equal to 2.50:1.00;
(B) (x) with respect to any Incremental Term Loan LenderLoans being incurred to finance a Permitted Acquisition designated by the Parent Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default has occurred and is continuing as applicableof 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 Incremental Facility Activation Notice (including the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), no 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 whom the applicable 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 Incremental Facility Activation Notice with respect to Incremental Revolving Commitments that such commitments are fully drawn) and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower proposes for which financial statements are available;
(D) each of the representations and warranties made by any portion 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, solely as of the date of execution and delivery of the applicable acquisition, merger or similar agreement governing such acquisition (provided that, if agreed by the Lenders providing such Incremental Term Loans, then at the written election of the Parent Borrower, 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 Incremental Facility Activation Notice (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 shall be no earlier than the weighted average life to maturity of the Tranche A 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 Tranche A Term Loans and the Revolving Loans;
(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 Tranche A Term Facility, shall be reasonably satisfactory to the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any prepayments of the applicable Tranche A Term Facility unless the Parent Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline Revolving Loans in respect thereof shall be pursuant to arrange the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Credit Commitments or shall become Revolving Commitments under this Agreement after giving effect to such Incremental Term Loan Commitments Facility Activation Notice;
(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 $20,000,000 and (y) no more than five Incremental Facility Closing Dates may be selected by the Parent Borrower after the Second 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 additional bank, and any Lender approached to provide all financial institution or a portion other entity which, with the consent of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or declineParent Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date connection with any transaction described in Section 2.25(a) shall be designated execute a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) New Lender Supplement (each, a “SeriesNew Lender Supplement”), substantially in the form of Exhibit G-3, whereupon such bank, financial institution or other entity (a “New Lender”) of Incremental Term Loans shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each 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, of each Eurocurrency Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurocurrency Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type or Eurocurrency Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Eurocurrency Loan borrowed pursuant to the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Tranche (or, until the expiration of the then-current Interest Period, such other rate as 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.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may requestmay, from time to at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any Business Day existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, 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, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith);
(v) 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 incurred on any date after the Sixth Amendment Effective Date that is on or prior to the day that is six months after the Seventh Amendment Effective Date in an aggregate principal amount in excess of the greater of (x) $105,000,000 and (y) 0.75% of Consolidated Total Assets as of the last day of the most recently ended 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 sixty one year after the Maturity Date of the Term B-4 Loans and (60D) days 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;
(vi) subject to the Permitted 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 as 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 may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility;
(ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility;
(A) any Incremental 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 or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral;
(xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (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 prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or 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 2.22 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 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 Stated Revolving Credit Termination Date 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 written notice this Agreement; and
(xiv) on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding LIBO Rate Loans or Term Benchmark Loans of the relevant Class and which end on the last day of such Interest Period.
(b) Incremental Commitments may be provided by any existing Lender, or by any other Eligible Assignee (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Lender by way of assignment.
(c) Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As conditions precedent to the effectiveness of any Incremental Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Additional Lender, an administrative questionnaire, in the form attached hereto as Exhibit G or in provided to such other form acceptable to Additional Lender by the Administrative Agent (a the “Commitment Amount Increase RequestAdministrative Questionnaire”) at least five and such other documents as it shall reasonably require from such Additional Lender, (5iii) Business Days prior the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Facility or Incremental Term Loans, (iv) the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the desired effective date occurrence of any default or Event of Default or other item 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 increase Incremental Facility or Incremental Term Loans, and
(the “Commitment Amount Increase”B) (i) an increase to the then existing Revolving Credit Commitments extent applicable, certifying that the conditions set forth in subclauses (A) and (B) of clause (a)(xii) above has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental 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 increasetechnical, mechanical and conforming amendments as may be necessary or appropriate in the “Incremental Revolving Credit Commitments”) and/or (ii) reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of one such new Classes or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or declinesub-Classes, in its sole discretion, each case on terms consistent with this Section 2.22.
(f) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreementcontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Incremental Facilities. The Borrower may request, from time to time, on any Business Day prior to the date that is sixty six (606) days months prior to the Stated Revolving Credit Scheduled Termination Date or the Term Loan Termination Date, as applicable, by written notice to the Administrative Agent in the form attached hereto as Exhibit G H or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 150,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 500,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, discretion and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement.
Appears in 1 contract
Incremental Facilities. The On one or more occasions at any time after the Closing Date, the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (iA) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental New Revolving Credit Commitments”) and/or (iiB) the establishment of one or more new term loan commitments denominated in Dollars (any such increasethe “New Term Commitments”, together with the New Revolving Commitments, the “Incremental Term Loan Commitments”), by up to an aggregate amount not in excess of to exceed $500,000,000 in the aggregate for all Incremental Commitments (so that the aggregate sum of the Total Revolving Commitments are plus the principal amount of Dollar Term Loans made hereunder does not in excess of exceed $1,000,000,000 and not less than $5,000,000 individually2,000,000,000). Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Borrower proposes that the such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and 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 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) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Commitment; provided that the Lenders will first be afforded the opportunity to provide the Incremental Term Loan Commitment. Any Incremental Term Loans made Commitments on an Increased Amount Date 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 designated a separate series identified by the year of maturity of deemed to have declined to provide such Incremental Term Loans Commitments, and (z) any Lender or month and year if there are multiple Incremental Term Loans maturing in the same year) other Person that is an Eligible Assignee (each, a “Series”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 Administrative Agent (such approval not to be unreasonably withheld or delayed), and, in the case of 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, (b) share ratably in any prepayments of the 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 Commitments and the availability of any borrowings under any such Incremental Commitments shall be subject to the satisfaction of the following conditions precedent: (x) after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall exist and (ii) as of the last day of the most recent calendar quarter for which financial statements have been delivered pursuant to Section 6.1, the Borrower would have been in compliance with the financial covenants set forth in Section 7.1; (y) the representations and warranties made or deemed made by the Borrower in any Loan Document shall be true and correct in all material respects (other than any representation or warranty qualified as to “materiality”, “Material Adverse Effect” or similar language, which shall be true and correct in all respects) on the effective date of such Incremental Commitments except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments; and (ii) a customary opinion of counsel to the Borrower (which may be in substantially the same form as delivered on the Closing Date), and addressed to the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new Notes executed by the Borrower, payable to any new Lender, and replacement Notes executed by the Borrower, payable to any existing Lenders. On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Lenders, and each of the New Revolving Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Lender shall become a Lender with respect to its New Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any New Term Commitments are effected, subject to the 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 Dollar Term Lender hereunder with respect to the New Term Commitment and the New Term Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Commitments and the New Revolving Lenders or the New Term Commitments and the New Term Lenders, as applicable, and (z) in the case of each notice to any Revolving Lender, the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the assignments contemplated by this paragraph. The fees payable by Borrower 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 one or more Additional Credit Extension 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, to effect the provisions of this AgreementSection 2.23, subject to the approval of the Borrower (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 Borrower may requestmay, any time or from time to timetime after the Funding Date, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a an “Commitment Amount Increase Incremental Facility Request”) at least five request (5x) Business Days prior to the desired effective date establishment of such increase incremental or additional term loan facilities (each, an “Incremental Term Facility”, the commitments thereunder, the “Commitment Amount IncreaseIncremental Term Commitments” and the loans thereunder, the “Incremental Term Loans”) and (iy) the establishment of incremental or additional revolving loan facilities (each, an increase to “Incremental Revolving Facility”, the then existing Revolving Credit Commitments (any such increasecommitments thereunder, the “Incremental Revolving Credit Commitments”) and/or (ii) ” and the establishment of one or more new term loan commitments (any such increaseloans 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 Loan CommitmentsFacilities shall be funded or the Incremental Revolving Commitments shall become available on the relevant Increased Amount Date; provided that no Incremental Facility shall be incurred on such date to the extent that the aggregate principal amount of such Incremental Facility when combined with the aggregate principal amount of all Incremental Facilities and Incremental Equivalent Debt incurred prior to such date exceeds the sum of:
(i) the greater of (A) $690,000,000 and (B) 100% of LTM EBITDA (the “Free and Clear Incremental Amount”), by plus
(ii) an amount equal to the aggregate principal amount of all voluntary prepayments (but, with respect to the Initial Revolving Facility or any Incremental Revolving Facility, only to the extent such voluntary prepayment is accompanied by a permanent reduction of the Initial Revolving Commitments or applicable Incremental Revolving Commitments) of the Initial Revolving Loans, Initial Term Loans or any Incremental Loans or Incremental Equivalent Debt that, in each case, is secured on a pari passu basis with the Initial Facilities prior to the date of such incurrence, in each case, so long as an such voluntary prepayment was not in excess funded with the proceeds of $500,000,000 Long Term Debt (the “Voluntary Prepayment Amount”), plus
(iii) an amount such that, after giving effect to the incurrence of such amount and the use of proceeds thereof, (A) in the aggregate so 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 aggregate Commitments 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 excess the calculation of $1,000,000,000 and not less than $5,000,000 individually. the First Lien Net Leverage Ratio or Secured Net Leverage Ratio, as applicable.
(b) Each such Commitment Amount Increase Incremental Facility Request shall identify specify the date (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or and Incremental Term Loan Commitments, as applicable, Loans shall be effectivemade available, and which shall be a date not less than five (y5) 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, Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitmentshave been allocated, as applicable, which allocation shall be allocated and made at the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its Borrower’s sole discretion, and any . Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment (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 an a portion of the applicable Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this Agreement).
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower and any one or more Lenders (including New Lenders) may request, from time to timetime agree that such Lenders shall make, on obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any Business Day prior to the date that is sixty (60) days prior to the Stated such increased Revolving Credit Termination Date 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 written notice executing and delivering to the Administrative Agent in an Additional Credit Extension Amendment specifying (i) the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date amount of such increase (and the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increaseFacility or Facilities involved, the “Incremental Revolving Credit Commitments”) and/or (ii) the establishment applicable Incremental Facility Closing Date and (iii) in the case of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”)Loans, by an amount not in excess of $500,000,000 in (w) the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify applicable Incremental Term Maturity Date, (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or amortization schedule for such Incremental Term Loan Commitments, as applicable, shall be effective, Loans and (y) the identity 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 and the outstanding principal amount (or committed amount, if applicable) of any Term Loans or Revolving Commitments, shall not exceed $500,000,000 (such amount, the “Incremental Cap”);
(B) (x) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition 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) and any Permitted Acquisition made with the proceeds thereof)), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available;
(D) each Lenderof the 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, as of the date of execution and delivery of the applicable acquisition, merger or other similar agreement governing such acquisition (provided that, if agreed by the Lenders providing such Incremental Term Loans, then at the written election of the Parent Borrower, 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 shall be no earlier than the weighted average life to maturity of the 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 an Eligible Assignee not a Loan Party;
(eachG) except with respect to pricing and fees or as otherwise set forth in this Section 2.25(a), an “Incremental Revolving Loan Lender” or an “all terms of any Incremental Term Loan Lender”Facility, as applicable)if not consistent with the applicable existing Term Facility, shall be reasonably satisfactory to whom the Administrative Agent; provided that each Incremental Term Facility shall share ratably in any prepayments of the applicable Term Facility unless the Parent Borrower proposes any portion and the lenders in respect of such Incremental Term Facility elect lesser payments;
(H) any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline Revolving Loans in respect thereof shall be pursuant to arrange 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 Commitments or 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 Term Loan Commitments Facility Closing Dates may be selected by the Parent Borrower after the Closing Date; and
(J) no Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) [Reserved].
(c) Unless otherwise agreed by the Administrative Agent, on each Incremental Facility Closing Date with respect to the Revolving Facility, each Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan of such Borrower (and, in the case of Eurocurrency Loans, of each Eurocurrency Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurocurrency Tranche had been borrowed or effected by such Borrower on such Incremental Facility Closing Date and (ii) the aggregate amount of each such Type or Eurocurrency Tranche requested to be so borrowed or effected by such Borrower had been proportionately increased. The Eurocurrency Rate applicable to any Lender approached Eurocurrency Loan borrowed pursuant to provide all or a portion the preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the other Lenders in the same Eurocurrency Tranche (or, until the expiration of the then-current Interest Period, such other rate as 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 Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitmentevidenced thereby. Any Incremental Term Loans made on an Increased Amount Date shall such amendment may be designated a separate series identified effected in writing by the year of maturity of such Incremental Term Loans (or month Administrative Agent and year if there are multiple Incremental Term Loans maturing in the same year) (each, a “Series”) of Incremental Term Loans for all purposes of this AgreementParent Borrower and furnished to the other parties hereto.
Appears in 1 contract
Sources: Credit Agreement (Tempur Sealy International, Inc.)
Incremental Facilities. (a) The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseAvailability Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide an such Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment, (y) any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Lender, the Issuing Bank and the Swingline Lender and (z) none of the Persons described in the foregoing clauses (x) and (y) may be an Ineligible Institution). Notwithstanding anything herein to the contrary, the aggregate Dollar Amount (calculated based on the Exchange Rate in effect on the date such Indebtedness was incurred, in the case of Incremental Term Loan Commitments, or first committed, in the case of Incremental Revolving Commitments) of all Incremental Revolving Commitments and Incremental Term Loan Commitments established pursuant to this Section 2.20, together with the aggregate Dollar Amount (calculated based on the Exchange Rate in effect on the date such Indebtedness is incurred) of all Incremental Equivalent Debt previously (or substantially simultaneously) incurred pursuant to Section 6.01(i), shall not exceed the sum of (A) $200,000,000 plus (b) unlimited additional Incremental Revolving Commitments, Incremental Term Loan Commitments and Incremental Equivalent Debt so long as, after giving pro forma effect thereto (assuming that any such Incremental Revolving Commitments are drawn in full, but excluding the proceeds of any such Incremental Term Loans, Incremental Revolving Commitments and Incremental Equivalent Notes for purposes of netting cash and Permitted Investments in the calculation of the Senior Secured Net Leverage Ratio), the Senior Secured Net Leverage Ratio shall not exceed 2.50 to 1.00 (other than to the extent such Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Debt are incurred pursuant to this clause (B) concurrently with the incurrence of Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Debt in reliance on clause (A) of this sentence, in which case the Senior Secured Net Leverage Ratio shall be permitted to exceed 2.50 to 1.00 to the extent of such Incremental Revolving Commitments, Incremental Term Loan Commitments and/or Incremental Equivalent Debt incurred in reliance on such clause (A)); provided that, for the avoidance of doubt, Incremental Revolving Commitments, Incremental Term Loan Commitments and Incremental Equivalent Debt may be incurred pursuant to this clause (B) prior to utilization of the amount set forth in clause (A) of this sentence.
(b) The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the Maturity Date (but may have amortization and/or customary prepayments prior to such date), (ii) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and (iii) shall have the same Guarantees as and shall rank pari passu with respect to the Liens on the Collateral and in right of payment with the Revolving Loans (except in the case of clause (ii) and (iii) to the extent that the related Incremental Facility Agreement provides for such Incremental Term Loans to be treated less favorably, in which case such Incremental Term Loans shall be subject to a customary intercreditor agreement in form and substance reasonably satisfactory to the Administrative Agent); provided that (x) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (y) the Incremental Term Loans may be priced differently (whether in the form of interest rate margin, upfront fees, original issue discount, call protection or otherwise) than the Revolving Loans. Any Incremental Term Loan Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made on an Increased Amount Date thereunder, shall be designated as a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (each, each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement.
(c) The Incremental Commitments shall be effected pursuant to 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), 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, 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 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 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 provisions of this Section and no consent of any Lender (other than the Lenders participating in the increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and Loans of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the applicable Class) hereunder 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.
(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 Loans and participations in Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Loans and participations in Letters of Credit will be held by all the Lenders with Revolving Commitments ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Loan Commitment of any Series shall make a loan to the Borrower in an amount equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement.
(g) 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 Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to be made pursuant to paragraph (e) above.
Appears in 1 contract
Sources: Credit Agreement (Medivation, Inc.)
Incremental Facilities. The On one or more occasions at any time after the Closing Date, the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (iA) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental New Revolving Credit Commitments”) and/or (iiB) the establishment of one or more new term loan commitments (any such increasethe “New Term Commitments”, together with the New Revolving Credit Commitments, the “Incremental Term Loan Commitments”), by up to an aggregate amount not in excess of to exceed $500,000,000 in the aggregate for all Incremental Commitments (so that the aggregate sum of the Maximum Revolving Credit Amount plus the principal amount of Term Commitments are made hereunder does not in excess of exceed $1,000,000,000 and not less than $5,000,000 individually1,500,000,000). Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Borrower proposes that the such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and 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 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, (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment Commitment, and (z) any Lender or other Person that is an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) Eligible Assignee (each, a “Series”New Revolving Credit 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 Administrative Agent (such approval not to be unreasonably withheld or delayed), and, in the case of a New Revolving Credit Commitment, the Issuing Bank and the Swingline Lender (each of which approvals shall not be unreasonably withheld), unless such New Revolving Credit Lender is an existing Lender (other than a Defaulting Lender) with a Revolving Credit Commitment at such time or such New Term Lender is an existing Lender or an Affiliate of an existing Lender. The terms and provisions of any New Revolving Credit Commitments shall be identical to the existing Revolving Credit 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 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) no Potential Event of Default or Event of Default shall exist and (ii) as of the last day of the most recent calendar quarter for which financial statements have been delivered pursuant to Section 8.2, the Borrower would have been in compliance with the financial covenants set forth in Section 10.1 and Section 10.12; (y) the representations and warranties made or deemed made by the Borrower in any Loan Document shall be true and correct in all material respects on the effective date of such Incremental Commitments except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments; and (ii) a customary opinion of counsel to the Borrower (which may be in substantially the same form as delivered on the Closing Date and may be delivered by internal counsel of the Borrower), and addressed to the Administrative Agent and the Lenders, and (iii) if requested by any Lender, new Notes executed by the Borrower, payable to any new Lender, and replacement Notes executed by the Borrower, payable to any existing Lenders. On any Increased Amount Date on which New Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to its New Revolving Credit Commitment and all matters relating thereto. On any Increased Amount Date on which any New Term Commitments are effected, subject to the 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 Lender hereunder with respect to the New Term Commitment and the New Term Loans made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (y) the New Revolving Credit Commitments and the New Revolving Credit Lenders or the New Term Commitments and the New Term Lenders, as applicable, and (z) in the case of each notice to any Revolving Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans, in each case subject to the assignments contemplated by this paragraph. The fees payable by Borrower upon any such increase in the Commitments shall be agreed upon by the Administrative Agent and Borrower at the time of such increase. The Incremental Commitments shall be evidenced pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Revolving Credit Lenders or New Term Lenders, as applicable, and the Administrative Agent, and each 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 AgreementSection 2.1(e).
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Washington Prime Group, L.P.)
Incremental Facilities. (a) The Borrower may requestmay, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable and each Lender (with a copy to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days Collateral Agent), request, prior to the desired effective date last day of such increase (the “Commitment Amount Increase”) (i) Revolving Period, an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental Revolving Credit New Commitments”) and/or by an amount not to exceed $400,000,000 (and the sum of the existing Commitments and any New Commitments shall not exceed $1,000,000,000 in the aggregate). Each such notice shall specify (i) the amount of the New Commitment, (ii) the establishment of one or more new term loan commitments date (any such increaseeach, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day (each an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit New Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, effective and approved in writing by the Administrative Agent and (yiii) the identity of each Lender, Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Increasing Lender”, as applicable), ) to whom the Borrower proposes any portion of such Incremental Revolving Credit New Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount amounts of such allocationsallocations (if then known); provided that Administrative Agent may elect or decline any New Commitment shall first be offered to arrange 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 Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Incremental Term Loans made on an 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 designated a separate series identified 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 year Borrower, such new Lender and the Administrative Agent, and each of maturity which shall be recorded in the Register; (C) the Borrower shall pay any applicable required fees in connection with the New Commitments; (D) the Borrower shall deliver or cause to be delivered any legal opinions or other customary closing documents (substantially consistent with the documents set forth in Section 3.01) reasonably requested by Administrative Agent or an Increasing Lender in connection with any such transaction; and (E) the effectiveness of any allocation of New Commitments to a 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 Incremental Term Loans New Commitments to the Commitments, (or month and year if there are multiple Incremental Term Loans maturing in the same yearii) (eacheach New Commitment shall be deemed, for all purposes, a Commitment and each Advance made thereunder (a “SeriesNew Advance”) of Incremental Term Loans shall be deemed, for all purposes of this Agreementpurposes, 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 2.04.
Appears in 1 contract
Sources: Loan and Servicing Agreement (HPS Corporate Lending Fund)
Incremental Facilities. (a) The Borrower Company may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to the then existing Revolving Credit Commitments (any such increase, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in ; provided that (A) the aggregate so that amount of all the aggregate Incremental Commitments are established hereunder shall not in excess exceed US$600,000,000 and (B) no Incremental Commitments may be established until after the earlier of $1,000,000,000 and not less than $5,000,000 individually. Each such Commitment Amount Increase Request shall identify (x) the Business Day Delayed Draw Term Funding Date and (each an “Increased Amount y) the Delayed Draw Term Commitment Termination Date”. Each such notice shall specify (1) the date on which the Borrower Company proposes that the Incremental Revolving Credit 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 the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (y2) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental Term Loan Commitments 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 Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and, in the case of any proposed Incremental Revolving Credit Lender, each Issuing Bank and the Swingline Lender, in each case not to be unreasonably withheld, delayed or conditioned and solely to the extent the consent of the Administrative Agent, the Issuing Banks or the Swingline Lender, as the case may be, would be required for an assignment to such Person pursuant to Section 10.04).
(b) The terms and conditions of any Incremental Revolving Commitment or an Incremental Term Loan Commitmentand the 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. Any The terms and conditions of any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by such as the year of maturity of such 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, (or month and year if there are multiple ii) the Incremental Term Loans maturing shall rank pari passu in right of payment with the other Loans and the other Loan Document Obligations and shall not be secured [[3851767]]
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and the Administrative Agent (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 same yearLoan Documents shall be true and correct in (A) in the case of the representations and warranties qualified as to materiality, in all respects and (eachB) 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 “Series”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 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 and the Company, to give effect to the provisions of this Section, including any amendments necessary or appropriate to treat the Incremental Term Loans for all purposes of this Agreement.Commitments and the Incremental [[3851767]]
Appears in 1 contract
Sources: Credit Agreement (Westinghouse Air Brake Technologies Corp)
Incremental Facilities. The Borrower may request, from (a) From time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date Company may by written notice to the Administrative Agent in elect to increase the form attached hereto as Exhibit G or in such other form acceptable to amount of the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (i) an increase to the then existing Revolving Credit Commitments (any such increase, the an “Incremental Revolving Credit CommitmentsCommitment”) and/or in an amount that may be incurred in compliance with this Agreement (ii) the establishment of one or more new term loan commitments (any such increaseincluding, the “Incremental Term Loan Commitments”without limitation, Sections 10.1 and 10.3), by which shall be in an amount not less than €25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent), and integral multiples of €5,000,000 in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of $1,000,000,000 and not less than $5,000,000 individuallyamount. Each such Commitment Amount Increase Request notice shall identify specify (x) the Business Day date (each each, an “Increased Amount Date”) on which the Borrower Company proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, Commitment shall be effective, which shall be a date not less than 5 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter notice period as the Administrative Agent may agree in its sole discretion) and (y) the identity of each Lender, Lender or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), ) to whom the Borrower Company proposes provide any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocationsCommitment; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or an Incremental Term Loan Commitment. Any Such Incremental Term Loans Commitment shall become effective, as of such Increased Amount Date; provided that:
(i) the Administrative Agent shall have received satisfactory evidence of the Borrowers’ repayment, in full, of the Super Priority Notes;
(ii) after giving effect to such Incremental Commitment, the aggregate amount of all Commitments shall not exceed €750,000,000;
(iii) before and after giving effect to such Incremental Commitment, no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date;
(iv) before and after giving effect to such Incremental Commitment, all representations and warranties made by any Credit Party contained in this Agreement or in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on an and as of such Increased Amount Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of said earlier date);
(v) the Incremental Commitment shall be designated a separate series identified by the year of maturity of such effected pursuant to one or more joinder agreements (collectively, for any Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) (eachCommitment, a “SeriesJoinder Agreement”) in form and substance satisfactory to the Administrative Agent which shall be executed and delivered by Holdings, each Borrower, each Incremental Lender and the Administrative Agent, and each of which shall be recorded in the Register; and
(vi) the Administrative Agent shall have received legal opinions and other documents reasonably requested by Administrative Agent in connection with any such transaction or required to be delivered under the applicable Joinder Agreement, provided that any acknowledgement of the Guaranty required to be delivered by any Guarantor and any confirmation that the Security Documents that secure the obligations of Holdings and the Borrowers hereunder will continue in full force and effect, together with duly executed copies of any amendments or replacements of Security Documents that may be required shall be a condition subsequent to the applicable Increased Amount Date.
(b) On any Increased Amount Date on which an Incremental Term Loans for all purposes Commitment is effective, each Incremental Lender shall become a Lender hereunder (and, in the case of an Incremental Commitment to be provided by an existing Lender, such Lender’s applicable Commitment shall have increased by the amount of its Incremental Commitment).
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of Borrowers’ notice of each Increased Amount Date and in respect thereof the Incremental Commitment.
(d) Upon each Incremental Commitment pursuant to this AgreementSection 2.15, each Lender with a Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Lender in respect of such increase, and each such Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding L/C Participations held by each Lender (including each such Incremental Lender) will reflect such Lender’s Commitment Percentage.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (NXP Semiconductors N.V.)
Incremental Facilities. The On one or more occasions at any time after the Effective Date, the Borrower may request, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable elect to the Administrative Agent request (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) (iA) an increase to the then existing Revolving Credit Commitments (any such increase, the “Incremental New Revolving Credit Commitments”) and/or (iiB) the establishment of one or more new term loan commitments (any such increasethe “New Term Loan Commitments”, together with the New Revolving Commitments, the “Incremental Term Loan Commitments”), by up to an aggregate amount not in excess of $500,000,000 in the aggregate so that the aggregate Commitments are not in excess of to exceed $1,000,000,000 and not less than $5,000,000 individuallyfor all Incremental Commitments. Each such Commitment Amount Increase Request notice shall identify specify the date (x) the Business Day (each each, an “Increased Amount Date”) on which the Borrower proposes that the such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, and 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 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, (y) the identity of each Lender, or other Person that is an Eligible Assignee (each, an “Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment Commitment, and (z) any Lender or other Person that is an Incremental Term Loan Commitment. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate series identified by the year of maturity of such Incremental Term Loans (or month and year if there are multiple Incremental Term Loans maturing in the same year) Eligible Assignee (each, a “Series”New Revolving Loan Lender” or “New Term Loan Lender,” as applicable) to whom any portion of such Incremental Commitment shall be allocated shall be subject to the approval of the Borrower and the Administrative Agent (such approval not to be unreasonably withheld or delayed), and, in the case of a New Revolving Commitment, each Issuing Bank (each of which approvals shall not be unreasonably withheld), unless such New Revolving Loan Lender or New Term Loan Lender is an existing Lender. The terms and provisions of any New Revolving Commitments shall be identical to the existing Revolving Commitments; provided that the applicable commitment fee, upfront and other fees with respect to any New Revolving Commitments shall be determined by the 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 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, (b) share ratably in any prepayments of the existing Term Loan Facility, unless the Borrower and the New Term Loan Lenders in respect of such New Term Loans elect lesser payments and (c) other than pricing or maturity date, shall have the 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 (subject to the remaining terms of this proviso) with respect to any 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 outstanding or Revolving Commitments in effect immediately prior to giving effect to such New Term Loan Commitments and (y) other terms that are reasonably acceptable to the 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 shall exist and (ii) as of the last day of the most recent month for which financial statements have been delivered pursuant to Section 5.01, the Borrower would have been in compliance with the Financial Covenants that are applicable at such time; (y) the representations and warranties made or deemed made by the Borrower in any Loan Document shall be true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on the effective date of such Incremental Commitments except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate or other necessary action taken by the Borrower to authorize such Incremental Commitments and (B) if applicable, all corporate, partnership, member, or other necessary action taken by each Guarantor authorizing the 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 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 thereof (y) the New Revolving Commitments and the New Revolving Loan Lenders or the New Term Loan Commitments and the New Term Loan Lenders, as applicable, and (z) in the case of each notice to any Revolving Loan Lender, the respective interests in such Revolving Loan Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section. The 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 one or more Additional Credit Extension 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, to effect the provisions of this AgreementSection 2.04.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Brixmor Operating Partnership LP)
Incremental Facilities. The Borrower may requeston one or more occasions, from time to time, on any Business Day prior to the date that is sixty (60) days prior to the Stated Revolving Credit Termination Date by written notice to the Administrative Agent in the form attached hereto as Exhibit G or in such other form acceptable to the Administrative Agent (a “Commitment Amount Increase Request”) at least five (5) Business Days prior to the desired effective date of such increase (the “Commitment Amount Increase”) Agent, request (i) an increase to during the then existing Revolving Credit Commitments (any such increaseCommitment Period, the “establishment of Incremental Revolving Credit Commitments”) Commitments and/or (ii) the establishment of one or more new term loan commitments (any such increase, the “Incremental Term Loan Commitments”), by an amount not in excess of $500,000,000 in the aggregate so provided that the aggregate amount of all the Incremental Commitments are established hereunder on any date shall not in excess exceed the Incremental Amount as of $1,000,000,000 and not less than $5,000,000 individuallysuch date. Each such Commitment Amount Increase Request notice shall identify specify (xA) the Business Day (each an “Increased Amount Date”) date on which the Borrower proposes that the Incremental Revolving Credit Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than five Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (yB) the identity amount of each Lender, or other Person that is an Eligible Assignee (each, an “the Incremental Revolving Loan Lender” or an “Incremental Term Loan Lender”, as applicable), to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amount of such allocations; provided being requested (it being agreed that Administrative Agent may elect or decline to arrange such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments in its sole discretion, and (x) any Lender approached to provide all or a portion of the any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments Commitment may elect or decline, in its sole discretion, to provide such Incremental 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 and, in the case of any proposed Incremental Revolving Credit Lender, each Issuing Bank) (such approvals not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary herein, no Incremental Commitment may be established during the Default Period.
(a) The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans; provided that, if the Borrower determines to increase the interest rate or an fees payable in respect of Incremental Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, such increase shall be permitted if the interest rate or fees payable in respect of the other Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Revolving Commitments or Revolving Loans and other extensions of credit made thereunder, as the case may be. The terms and conditions of any Incremental Term Loan Commitment. Any Commitments and the Incremental Term Loans to be made on an Increased Amount Date thereunder shall be designated a separate series identified by as set forth in the year applicable Incremental Facility Agreement; provided that (i) (A) no Incremental Term Loan Maturity Date in respect of any Incremental Tranche A Term Loans shall be earlier than the latest Maturity Date in respect of any other TLA Term Loans in effect on the date of incurrence of such Incremental Tranche A Term Loans and (B) no Incremental Term Loan Maturity Date in respect of any Incremental Term Loans (other than Incremental Tranche A Term Loans) shall be earlier than the latest Maturity Date in effect on the date of incurrence of such Incremental Term Loans, (ii) (A) the weighted average life to maturity of any Incremental Tranche A Term Loans shall be no shorter than the longest remaining weighted average life to maturity of any other Class of TLA Term Loans outstanding on the date of incurrence of such Incremental Tranche A Term Loans (and, for purposes of determining the weighted average life to maturity of any such other Class of Term Loans, the effects of any prepayments made prior to the date of the determination shall be disregarded) and (B) the weighted average life to maturity of any Incremental Term Loans (other than Incremental Tranche A Term Loans) shall be no shorter than the longest remaining weighted average life to maturity of any other Class of Term Loans outstanding on the date of incurrence of such Incremental Term Loans (or month and, for purposes of determining the weighted average life to maturity of any such other Class of Term Loans, the effects of any prepayments made prior to the date of the determination shall be disregarded), it being understood that, subject to this clause (ii), the amortization schedule applicable to (and year if there are multiple the effect thereon of any prepayments of) any Incremental Term Loans maturing shall be determined by the Borrower and the applicable Incremental Lenders, (iii) the Weighted Average Yield, determined as of the date of incurrence of such Incremental Term Loans, shall not be greater than (A) in the case of any Incremental Tranche A Term Loans, the Weighted Average Yield with respect to the Tranche A Term Loans and (B) in the case of any Incremental Term Loans (other than Incremental Tranche A Term Loans), the Weighted Average Yield with respect to the Tranche B Term Loans, in each case determined as of such date (giving effect to any amendments to the Weighted Average Yield on the Tranche A Term Loans or Tranche B Term Loans, as applicable, that became effective subsequent to the Closing Date but prior to such date, but excluding the effect of any increase in interest margins with respect thereto pursuant to this clause (iii)), plus 0.50% per annum unless the Applicable Rate (together with, as provided in the proviso below, the Adjusted Eurodollar Rate and Base Rate floors) with respect to the Tranche A Term Loans or Tranche B Term Loans, as applicable, is increased, or fees to Lenders then holding the Tranche A Term Loans or Tranche B Term Loans, as applicable, are paid, so as to cause (x) the Weighted Average Yield with respect to the Tranche A Term Loans to equal the Weighted Average Yield with respect to such Incremental Tranche A Term Loans minus 0.50% or (y) the Weighted Average Yield with respect to the Tranche B Term Loans to equal the Weighted Average Yield with respect to such Incremental Term Loans (other than Incremental Tranche A Term Loans) minus 0.50%, as applicable, provided that any increase in the effective Weighted Average Yield with respect to the Tranche A Term Loans or the Tranche B Term Loans, as the case may be, due to the application of an Adjusted Eurodollar Rate or Base Rate floor to any Incremental Term Loans shall be effected solely through an increase in the Adjusted Eurodollar Rate or Base Rate floor applicable to the Tranche A Term Loans or the Tranche B Term Loans, as the case may be, and only to the extent an increase in such floor with respect to the Tranche A Term Loans or the Tranche B Term Loans, as the case may be, would cause an increase in the interest rate then in effect with respect thereto, (iv) Incremental Term Loans may participate in any mandatory prepayments on a pro rata basis (or on a basis that is less than pro rata) with the other Term Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to the other Term Loans, (v) any Incremental Commitments and any Loans thereunder shall rank pari passu in right of payment, and shall be secured by the Collateral on an equal and ratable basis, with the other Commitments and Loans, and shall be extensions of credit to the Borrower that are Guaranteed only by the Credit Parties and (vi) except for the terms referred to above and subject to Section 2.23(c), to the extent the terms of any Incremental Term Loans (other than interest rates (whether fixed or floating), interest margins, benchmark rate floors, fees, original issue discounts and prepayment terms (including “no call” terms and other restrictions thereon) and premiums) are not consistent with (A) in the case of any Incremental Tranche A Term Loans, those of the Tranche A Term Loans and (B) in the case of any Incremental Term Loans (other than Incremental Tranche A Term Loans), those of the Tranche B Term Loans, in each case, as in effect on the date of incurrence of such Incremental Term Loans, such differences shall be reasonably acceptable to the Administrative Agent (except for terms benefitting the Incremental Term Lenders (x) where this Agreement is amended to include such beneficial terms for the benefit of all Lenders (or, in the case of any Incremental Tranche A Term Loans, all Lenders holding TLA Term Loans or Revolving Commitments) or (y) applicable only to periods after the latest Maturity Date in effect as of the date of incurrence of such Incremental Term Loans). In the event any Incremental Term Loans have the same yearterms as any existing Class of Term Loans then outstanding or any Extended/Modified Term Loans or Refinancing Term Loans then substantially concurrently established (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), such Incremental Term Loans may, at the election of the Borrower, be treated as a single Class with such outstanding Term Loans or such Extended/Modified Term Loans or Refinancing Term Loans, and the scheduled Installments set forth in Section 2.11 with respect to any such Class of Term Loans may be increased to reflect scheduled amortization of such Incremental Term Loans.
(b) 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 no Incremental Commitments shall become effective unless (eachi) on the date of effectiveness thereof, a “Series”both immediately prior to and immediately after giving Pro Forma Effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), and the use of proceeds thereof, no Default or Event of Default shall have occurred and be continuing or would result therefrom and the representations and warranties of each Credit Party set forth in 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 specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date; provided that, in the case of Incremental Term Loan Commitments established to finance, in whole or in part, a Limited Conditionality Transaction, the conditions set forth in this clause (i) may be tested in accordance with Section 1.5 to the extent agreed by the Borrower and the Incremental Lenders providing such Incremental Term Loan Commitments, all as set forth in the applicable Incremental Facility Agreement, (ii) the Administrative Agent shall have received a certificate, dated the date of effectiveness thereof and signed by an Authorized Officer of the Borrower, confirming compliance with the conditions set forth in clause (i) above and, if such Incremental Term Loan Commitments or any portion thereof are being established in reliance on clause (b) of the definition of the term “Incremental Amount”, setting forth a reasonably detailed calculation of the Incremental Amount under such clause, (iii) 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 (iv) the Borrower shall have delivered to the Administrative Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates, reaffirmation agreements and other documents as shall reasonably be requested (consistent in all material respects with the documents delivered under Section 3.1 on the Closing Date) by the Administrative Agent in connection with any such transaction. 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, including any amendments necessary to treat the applicable Incremental Term Loan Commitments and Incremental Term Loans as a new Class of Commitments and Loans hereunder (including for all purposes of this Agreementprepayments and voting (it being agreed that such new Class of Commitments and Loans may be included in the definitions of “Majority in Interest”, “Pro Rata Share”, “Requisite Lenders” and, as applicable, “Requisite Tranche A/Revolving Lenders” and may be afforded class voting rights requiring the consent of Lenders under such Class in addition to any other consent of Lenders that might otherwise be required under Section 10.5) and to enable such new Class of Commitments and Loans to be extended under Section 2.24 or refinanced under Section 2.25).
(c) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) in the case of an Incremental Term Loan Commitment, 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 Credit Documents, and (ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Pro Rata Shares of all the Revolving Lenders, shall automatically be adjusted to give effect thereto.
(d) On the date of effectiveness of any Incremental Revolving Commitments:
(i) the aggregate principal amount of the Revolving Loans (the “Existing Revolving Borrowings”) outstanding immediately prior to the effectiveness of such Incremental Revolving Commitments shall be deemed to be repaid,
(ii) each Incremental Revolving Lender shall pay to the Administrative Agent in same day funds an amount equal to the difference, if positive, between:
(A) the product of (1) such Lender’s Pro Rata Share of the applicable Class (calculated after giving effect to such effectiveness) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings (as hereinafter defined) and
(B) the product of (x) such Lender’s Pro Rata Share of the applicable Class (calculated without giving effect to such effectiveness) multiplied by (y) the aggregate principal amount of the Existing Revolving Borrowings,
(iii) after the Administrative Agent receives the funds specified in clause (ii) above, the Administrative Agent shall pay to each Revolving Lender the portion of such funds that is equal to the difference, if positive, between:
(A) the product of (1) such Lender’s Pro Rata Share of the applicable Class (calculated without giving effect to such effectiveness) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and
(B) the product of (1) such Lender’s Pro Rata Share of the applicable Class (calculated after giving effect to such effectiveness) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings,
(iv) after the effectiveness of such Incremental Revolving Commitments, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Period
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Sources: First Lien Credit and Guaranty Agreement (Fusion Connect, Inc.)