Incremental Facilities. The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 7 contracts
Sources: Credit Agreement (NETSTREIT Corp.), Credit Agreement (NETSTREIT Corp.), Credit Agreement (NETSTREIT Corp.)
Incremental Facilities. (a) The Borrower shall have the right to request increases Borrowers or any Guarantor organized in the aggregate amount of the Revolving Commitments United States or the making of incremental term loans hereunder Canada (“Incremental Term Loans”, and any such increase Guarantor, for so long as loans or commitments remain outstanding under the applicable Incremental Term LoansFacility, an “Incremental FacilityAdditional Borrower”) may, by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility request the aggregate amount establishment of the sum one or more new tranches of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 term facilities denominated in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day fundsDollars, an amount equal Alternative Currency or any other currency agreed to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the applicable Borrower, the Administrative Agent and any Lender the Lenders providing such New Term Loan Facility (each, a “New Term Loan Facility”) and/or increase the principal amount of the Initial Term Loans, any Incremental Term Loans or any Extended Term Loans by requesting new term loan commitments to be added to such Loans (together with any New Term Loan Facility, which supplement may include such amendments an “Incremental Term Facility” and, any Loans made pursuant to this agreement as an Incremental Term Facility, “Incremental Term Loans”) and/or request the Administrative Agent deems reasonably necessary establishment of one or appropriate to implement such more new tranches of Revolving Credit Commitments (each, a “New Revolving Credit Facility”) and/or request an increase in any Tranche of Revolving Credit Commitments (together with any New Revolving Credit Facility, an “Incremental Facility contemplated by this Section 2.17.Revolving Credit Facility” and, together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or any Incremental Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable“Incremental Facilities” and, in the amount of such loans thereunder, “Incremental Revolving Lender’s Revolving Commitment or aggregate Credit Loans” and, together with any Incremental Term Loans at the time of the effectiveness of the applicable Loans, “Incremental Facility. In connection with Loans”); provided that no existing Lender will have an obligation to make any Incremental Facility, nor will the Borrower have any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) obligation to approach any existing Lenders to provide any Incremental Facility, in the case of any Lender that is organized under the laws of a jurisdiction outside an aggregate amount not in excess 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 Laws, including without limitation, the Patriot Act.sum of
Appears in 6 contracts
Sources: Credit Agreement (APi Group Corp), Amendment No. 7 to Credit Agreement (APi Group Corp), Credit Agreement (APi Group Corp)
Incremental Facilities. The Borrower (a) At any time during the period from and after the Closing Date through but excluding the date that is the three-year anniversary of the Closing Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). 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 have be in an amount of at least $10,000,000 and integral multiples of $500,000 in excess thereof. In no event may the right Revolver Commitments and the Maximum Revolver Amount be increased pursuant to request increases this Section 2.14 on more than three 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 Revolving Increases to the Revolver Commitments exceed $50,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the making commitment of incremental term loans hereunder one or more Lenders (“Incremental Term Loans”, or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such increase Lenders (or Incremental Term Loansprospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Incremental FacilityIncrease 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 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, and
(iv) 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 date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount (the “Increase Date”).
(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”) by providing written notice shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Administrative AgentIncrease Date (the “Post-Increase Revolver Lenders”), which notice and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on such Increase Date as shall be irrevocable once given; providednecessary in order that, however, that after giving effect to any all such Incremental Facility the aggregate amount assignments and purchases, such Revolving Loans and participation interests in Letters of the sum of the 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 Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) , Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall not exceed $650,000,000. The allocation of any increase between the constitute Revolving Commitments Loans, Revolver Commitments, and Incremental Term Loans Maximum Revolver Amount under, and shall be made at entitled to all the time Borrower requests such increasebenefits 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. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 Borrowers shall take any actions reasonably required by Agent to ensure and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with demonstrate that the Borrower, shall manage all aspects of Liens and security interests granted by the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders Loan Documents continue to be approached with respect to such increase perfected under the Code or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and otherwise after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment establishment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment new Revolver Commitments and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17Maximum Revolver Amount., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 4 contracts
Sources: Fifth Amendment to Credit Agreement and First Amendment to Guaranty and Security Agreement (Oil States International, Inc), Credit Agreement (Oil States International, Inc), Credit Agreement (Oil States International, Inc)
Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) may by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect Agent elect to increase the existing Revolving Credit Commitments of any Class (any such increase, the “Incremental Facility Revolving Credit Commitments”) and/or increase the aggregate amount of existing Initial Term Commitments or incur one or more new term loan commitments (the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such “Incremental Term LoansLoan Commitments”), by an amount (1) shall not to exceed $650,000,000. The allocation of any increase between in the Revolving Commitments and Incremental Term Loans shall be made aggregate, at the time Borrower requests such increaseof incurrence, the Incremental Available Amount and (2) not less than, individually, $25,000,000. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or All Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banksLoan Commitments, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, Incremental Revolving Loans and any new Incremental Revolving Credit Commitments shall be in Dollars.
(b) Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period of time as may be agreed to by the Administrative Agent in its sole discretion) and (ii) the identity of each Lender becoming a party to this Agreement in connection with any such requested increase or other Person, which must be an Eligible Assignee and(each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loan Commitments effected through the establishment of one or more term loan commitments made on an Increased Amount Date that are not fungible for United States federal income tax purposes with an existing Class of Term Loans shall be designated a separate Class of Incremental Term Loan Commitments for all purposes of this Agreement. Notwithstanding the foregoing, any Incremental Term Loans may be treated as part of the same Class as any other Incremental Term Loans if such new Lender is assuming Revolving Commitments, must be subject to 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 consent Lenders promptly upon receipt of the Borrower’s notice of each Issuing Bank Increased Amount Date and in respect thereof (i) the Incremental Revolving Credit Commitments and the Swingline Lender. If a new Lender becomes a party to this AgreementIncremental Revolving Loan Lenders or Incremental Term Loan Commitments and the Incremental Term Loan Lenders, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder as applicable and (or ii) in the case of an existing Lendereach notice to any applicable Revolving Credit Lender of any given Class, increases its the respective interests in such Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Credit ▇▇▇▇▇▇’s Revolving Commitment Percentage (determined with respect Credit Loans of such Class, in each case subject to the Lenders’ respective assignments contemplated by this Section.
(d) Such Incremental Revolving Credit Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and or Incremental Term Loan Commitments shall become effective as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans Increased Amount Date; provided that:
(i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans(x) subject, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) solely in the case of Incremental Term Loans, (x) to Section 1.09(c), no Event of Default shall not mature earlier than 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, in the case of Incremental Term Loans incurred to finance a Permitted Acquisition, this clause (i)(x) may be limited as agreed in the Joinder Agreement between the Borrower and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the applicable Incremental Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject Lenders to the following conditions precedent: (x) require that no Default or Event of Default under Section 8.01(a), 8.01(f) or 8.01(g) shall be in existence on the effective date of exist before or after giving effect to such increase, Incremental Term Loans and (y) the representations and warranties made or deemed made by of the Borrower and any each other Loan Party contained in any Loan Document to which such Loan Party is a party Article 5 hereof shall be true and correct in all material respects (except in the case of a that any representation or and warranty that is qualified by materiality or as to “materiality,” “Material Adverse Effect, in which case such representation ” or warranty similar language shall be true and correct in all respects(after giving effect to any qualification therein) on the effective date and as of such increase date, except in each case to the extent that such representations and warranties expressly relate solely specifically refer to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effectdate, in which case such representation or warranty they shall be true and correct in all respects) on and as of such earlier date); provided that, and in the case of Incremental Term Loans incurred to finance a Permitted Acquisition, this clause (zi)(y) shall be limited to the Administrative Agent shall have received each Specified Representations;
(ii) with regard to the incurrence of any additional Class of Incremental Term Loans incurred prior to the first anniversary of the followingClosing Date pursuant to this Section 2.14 that is in an aggregate principal amount at the time of such incurrence in excess of $50,000,000, in form and substance satisfactory the yield applicable to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary each such additional Class of (A) all corporate, partnership, member or other necessary action taken Incremental Term Loans shall be determined by the Borrower and the applicable lenders under such additional Class of Incremental Term Loans as set forth in the applicable Joinder Agreement; provided that the Effective Yield applicable to authorize such additional Class of Incremental Facility Term Loans will not be more than fifty (50) basis points greater than the Effective Yield for any outstanding Term Loans unless the interest rate margin with respect to such Term Loans is increased by an amount equal to the difference between the Effective Yield with respect to such additional Class of Incremental Term Loans less fifty (50) basis points and the Effective Yield for such Term Loans (Bthe “MFN Protection”);
(iii) all corporateThe Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, partnershipas applicable, member shall be effected pursuant to one or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent Incremental Revolving Loan Lender(s) or Incremental Term Loan Lender(s), as applicable, and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate 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 implement such the requirements set forth in Section 3.01);
(iv) the Incremental Facility contemplated Facilities shall be Guaranteed by this Section 2.17., together the Guarantors (and shall not be Guaranteed by any Person other than the Guarantors) and rank pari passu in right of security with the consent of other Facilities (and shall not be secured by any assets other than the Guarantors thereto; Collateral);
(iiiv) an opinion of counsel to the Borrower all fees and the Guarantors, and addressed reasonable out-of-pocket expenses owing to the Administrative Agent and the Lenders covering (other than a Defaulting Lender) in respect of the Incremental Revolving Credit Commitments and Incremental Term Loan Commitments shall have been paid; and
(vi) the Borrower shall deliver or cause to be delivered legal opinions, officer’s certificates and such matters as other documents reasonably requested by the Administrative Agent; Agent in connection with any such transaction.
(e) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Credit Lenders of the Class being so increased shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the existing Revolving Credit Lenders of the Class being so increased, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans of the Class being so increased and participations in Letters of Credit outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans and participations in Letters of Credit will be held by existing Revolving Credit Lenders of such Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of the Class being so increased after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments of such Class, (ii) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment of the Class being so increased and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan of the Class being so increased and (iviii) new 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 replacement Revolving Notes 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 Notes executed by Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class or increase and (ii) each Incremental Term Loan Lender of such Class or increase shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class or increase and the Incremental Term Loans of such Class or increase made pursuant thereto.
(g) The terms (including pricing, premiums, fees, rate floors, optional prepayment provisions, and/or mandatory prepayment provisions) and conditions of the Incremental Term Loans and Incremental Term Loan Commitments shall be, except as otherwise explicitly set forth herein, (x) as agreed in the Joinder Agreement between the Borrower, payable the applicable Incremental Term Loan Lenders providing such Incremental Term Loan Commitments and the Administrative Agent and (y) reasonably acceptable to the Administrative Agent; provided that (i) the terms of such Incremental Term Loans and Incremental Term Loan Commitments 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 Incremental Term Loans and Incremental Term Loan Commitments is established or (y) this Agreement is amended so that such terms as are beneficial to the Lenders are also applicable for the benefit of any Lenders participating in such under any then-existing Facilities, (ii) the Weighted Average Life to Maturity of all Incremental Facility, as applicable, in Term Loans shall be no shorter than the amount Weighted Average Life to Maturity of such Revolving Lender’s Revolving Commitment or aggregate any other Term Loans at the time of the effectiveness incurrence of such Incremental Term Loans, (iii) the applicable Incremental Facility. In connection with Term Loan Maturity Date of each Class shall be no shorter than the Latest Maturity Date at the time of the incurrence of such Incremental Term Loans and (iv) such 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 mandatory prepayments of Term Loans hereunder, as specified in the applicable Joinder Agreement.
(h) The terms and provisions of the Incremental FacilityRevolving 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.
(i) Each Joinder Agreement may, without the consent of any Lender becoming a party hereto shall (1) execute other Lenders, effect such documents amendments to this Agreement and agreements the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent may reasonably request and Agent, to effect the provisions of this Section 2.14 (2) in including any amendments that are not adverse to the case interests of any Lender that is organized under 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 laws aggregate principal amount of a jurisdiction outside of the United States of America, provide scheduled installment payments to the Administrative Agent, its name, address, tax identification number and/or extent such other information as 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 be necessary for supersede any provisions in Section 2.13 or Section 10.01 to the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Actcontrary.
Appears in 4 contracts
Sources: Libor Hardwire Transition Amendment (Yesway, Inc.), Joinder and Amendment Agreement (Yesway, Inc.), Libor Hardwire Transition Amendment (Yesway, Inc.)
Incremental Facilities. (a) The Parent Borrower shall have may, by written notice to the right Administrative Agent at any time, on one or more occasions, request to request increases in (i) add one or more new Classes of term facilities and/or increase the aggregate principal amount of the Revolving Commitments any Class of Term Loans, any Incremental Term Loans or the making of incremental any Specified Refinancing Term Loans by requesting new term loan commitments to be added to such Loans (any such new Class or increase, an “Incremental Term Facility” and any loans hereunder (made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the principal amount of any Class of Revolving Commitments, and any Incremental Revolving Commitments or any Specified Refinancing Revolving Commitments and/or add one or more new Classes of incremental revolving facilities (any such increase new Class or increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) in an aggregate principal amount of not less than $10,000,000, and $5,000,000 increments in excess thereof or (y) equal to the remaining Incremental Amount), (ii) the applicable Borrower and (iii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. Any Incremental Revolving Facility may provide for the ability to permanently repay and terminate incremental revolving commitments on a pro rata basis or less than a pro rata basis (but not greater than pro rata basis) with the Revolving Facility.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld, delayed or conditioned) to such Additional Lender’s providing such Incremental Facility”Facilities if such consent would be required under Section 10.04(b) by for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing written notice all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent, which notice Agent an Incremental Facility Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall determine the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be set forth in the respective Incremental Facility Agreement; provided that:
(i) the final maturity date of any Incremental Term Loan shall be irrevocable once given; provided, however, that after giving effect no earlier than the Latest Maturity Date with respect to Term Loans then outstanding,
(ii) the weighted average life to maturity of any such Incremental Facility Term Loan shall be no shorter than the aggregate amount then longest remaining weighted average life to maturity of the sum then-existing Term Loans, calculated as of the Revolving Commitments plus the principal amount date of Term Loans (including any making such Incremental Term LoansLoan,
(iii) such Incremental Facilities shall not exceed $650,000,000. The allocation be secured on a pari passu basis with respect to the Loans outstanding as of (or made on) the Increased Amount Date,
(iv) any increase between the Revolving Commitments and mandatory prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 on a pro rata basis with all then-existing Term Loans (and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the other then-existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the allocations thereof among applicable Borrower and the lenders in respect of such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender Incremental Term Loans shall be obligated permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis),
(v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to then-existing Revolving Commitments,
(vi) the All-In-Yield (and the components thereof) applicable to any Incremental Facility may be determined by the applicable Borrowers and the lender or lenders providing such Incremental Facility.
(vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitments hereunder, (x) no more than three (3) revolving facilities (including any revolving facility constituting Specified Refinancing Debt) shall be outstanding hereunder at any one time, (y) the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to allocate Letters of Credit and any participations therein between any revolving facilities;
(viii) any Incremental Term Facility shall provide for Incremental Term Loans denominated in Dollars or in any way whatsoever other currency reasonably acceptable to increase its Revolving Commitment or provide a new Revolving Commitment or the Administrative Agent and the Lenders thereunder;
(ix) subject to clauses (i) and (ii) above, the amortization schedule applicable to any Incremental Term LoansFacility shall be determined by the Borrowers and lenders thereunder; and
(x) no Incremental Facility will be guaranteed by any Person that is not a Loan Party. All terms and documentation (which may, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to entry into an Acceptable Intercreditor Agreement (if applicable), take the consent form of each Issuing Bank and a separate loan agreement) with respect to Incremental Facilities which are not substantially consistent with those with respect to the Swingline Lender. If a new Lender becomes a party Loans under the existing applicable Credit Facility shall be reasonably satisfactory to this Agreementthe Administrative Agent (except to the extent (i) permitted by clauses (i) through (x) above, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on (ii) applicable only to periods after the date it becomes a Lender hereunder Latest Maturity Date applicable to (or x) in the case of an any Incremental Term Facility, any then-existing Lender, increases its Revolving CommitmentTerm Facility or (y) (and as a condition thereto) purchase from in the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) case of any outstanding Incremental Revolving LoansFacility, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such any then-existing Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, Facility or (iii) in the case of any financial maintenance covenant added or modified for the benefit of any Incremental Term LoansFacility, such financial covenant is added or modified also for the benefit of (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation any Incremental Term Facility, any then-existing Term Facility or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects(y) on the effective date of such 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 (except in the case of a representation any Incremental Revolving Facility, any then-existing Revolving Facility); it being understood and agreed that any Incremental Revolving Facility structured as an increase shall have the same terms as the existing Revolving Facility (other than upfront fees). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Facility Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Facility Agreement, this Agreement shall be amended as necessary or warranty qualified by materiality or Material Adverse Effectappropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Parent Borrower’s consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) subject to Section 1.03, on the date on which case such representation Loan is made or warranty of such effectiveness, the conditions set forth in Section 4.02 shall be true and correct satisfied (it being understood that all references to “the occasion of any Borrowing” in all respectsSection 4.02 shall be deemed to refer to the Increased Amount Date) on and as of such earlier date), and (zii) the Administrative Agent shall have received each legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Facility Agreement and generally consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of the following, in form and substance opinion reasonably satisfactory to the Administrative Agent: ).
(if) On the date of effectiveness of any Incremental Revolving Facility, the maximum amount of LC Exposure permitted hereunder shall increase by an amount, if not previously delivered to the any, agreed upon by Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower relevant Issuing Bank and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Parent Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 4 contracts
Sources: Incremental Assumption Agreement and Amendment No. 1 to Credit Agreement (Krispy Kreme, Inc.), Master Amendment (Krispy Kreme, Inc.), Credit Agreement (Krispy Kreme, Inc.)
Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”Borrowers may, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative AgentAgent on one occasion, request Incremental Revolving Loan Commitments in an amount not to exceed $15,000,000 in the aggregate from one or more Incremental Revolving Lenders, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable to the Agent (which acceptance shall not unreasonably withheld or delayed), the Borrower Representative and the Issuer. Such notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility set forth (i) the aggregate amount of the sum of Incremental Revolving Loan Commitments being requested (which shall be a minimum amount $10,000,000), and (ii) the Revolving Commitments plus the principal amount of Term Loans (including any date on which such Incremental Term Loans) Revolving Loan Commitments are requested to become effective (which shall not exceed $650,000,000be less than 10 Business Days nor more than 30 days after the date of such notice). The allocation Borrowers will first seek Incremental Revolving Loan Commitments from existing Lenders (each of any increase between the Revolving Commitments and Incremental Term Loans which shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 entitled to agree or decline to participate in excess thereof. The Arrangersits sole discretion) and, in consultation with the Borrowerif additional commitments are needed, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other from additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Lenders in connection therewith. The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Agent an Incremental Revolving Loan Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Revolving Loan Commitment of each such Person. The terms and provisions of such Incremental Revolving Credit Commitments and Revolving Loans made under such Incremental Revolving Credit Commitments shall be approached with respect identical to such increase or those of the existing Revolving Loans.
(b) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Revolving Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Credit Commitment and Incremental Revolving Loans evidenced thereby, and the allocations thereof among such existing Lenders and/or other banks, financial institutions Agent and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to the Borrowers may revise this Agreement in connection with any to evidence such requested increase must be an Eligible Assignee andamendments.
(c) Notwithstanding the foregoing, if such new Lender is assuming no Incremental Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to Credit Commitment shall become effective under this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall Section 2.9 unless (i) on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenderseffectiveness, the conditions set forth in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that 5.2 have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment satisfied and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each a certificate to that effect dated such date and executed by an Authorized Officer of the followingBorrowers, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the BorrowerAgent shall have received legal opinions, the Administrative Agent board resolutions and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as other closing certificates reasonably requested by the Administrative Agent; Agent and consistent with those delivered on the Closing Date under Section 5.1.
(ivd) new or replacement Revolving Notes or Term Notes executed by Each of the Borrower, payable to any Lenders participating in such Incremental Facility, as applicableparties hereto hereby agrees that the Agent may, in consultation with the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of Borrowers, take any and all action as may be reasonably necessary to ensure that, upon the effectiveness of the applicable each Incremental Facility. In connection with any Revolving Loan Commitment, (i) Revolving Loans made under such Incremental Facility, any Lender becoming Revolving Credit Commitment are included in each Borrowing of outstanding Revolving Loans on a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request pro rata basis and (2ii) the Lender providing each Incremental Revolving Credit Commitment shares ratably in accordance with its Percentage in the case aggregate Revolving Loans, Swing Loans and Letter of any 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 Laws, including without limitation, the Patriot ActCredit Outstandings then outstanding.
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (Parametric Sound Corp), Credit Agreement (Parametric Sound Corp)
Incremental Facilities. (a) The Parent Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall have make, obtain or increase the right to request increases in the aggregate amount of their Incremental Term Loans (an “Incremental Term Loan Facility”) or the USD Revolving Credit Commitments or the making of incremental term loans hereunder Multicurrency Revolving Credit Commitments (“Increased Revolving Credit Commitments”; together with any Incremental Term Loans”Loan Facility, and any such increase or Incremental Term Loans, an the “Incremental FacilityFacilities”) by providing written notice to the Administrative Agent), which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loansapplicable, by making available executing and delivering to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to Increased Facility Activation Notice specifying (Ai) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loansincrease, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loansapplicable Increased Facility Closing Date, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the applicable Incremental Term Loans and Maturity Date, (y) shall have no the amortization or otherwise be permitted to be prepaid prior to the schedule for such Incremental Term Loan Maturity DateLoans, and (iv) shall be treated substantially the same (and in any event not more favorably thanz) the Revolving Applicable Margin for such Incremental Term Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: ; provided that (xi) no Default or Event of Default exists or would exist after giving effect to such Incremental Facility and the incurrence of any Loans thereunder on the applicable Increased Facility Closing Date, (ii) the maturity date and Weighted Average Life to Maturity of any such Incremental Term Loan Facility shall be in existence on no earlier than (or the effective same as) the maturity date and Weighted Average Life to Maturity, respectively, of such increasethe Tranche A Term Loans, (yiii) the representations interest rates and warranties made or deemed made amortization schedule applicable to any Incremental Term Loan Facility shall be determined by the Parent Borrower and the lenders thereunder and (iv) any other Loan Party in any Loan Document to which such Loan Party is a party Increased Revolving Credit Commitments shall be true on terms and correct pursuant to documentation applicable to the applicable Revolving Credit Facility (including the maturity date in all material respects (except 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 a representation or warranty qualified by materiality or Material Adverse Effectan Incremental Term Loan Facility, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase Tranche A Term Loan Facility (except to the extent that such representations permitted by clause (ii) 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respectsiii) on and as of such earlier dateabove), and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: Agent (including as to the identity of the New Lenders); provided that if the total yield (calculated for both the Incremental Term Loans and the existing Term Loans, including the upfront fees, any interest rate floors and any OID (as defined below), but excluding any arrangement, structuring, syndication or other similar fees paid by the Parent Borrower) in respect of any Incremental Term Loans exceeds the total yield for the existing 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 assumed four-year life to maturity) by more than 0.50% per annum, the Applicable Margin for the existing Term Loans shall be increased so that the total yield in respect of such Incremental Term Loans is 0.50% per annum greater than the total yield for the existing Term Loans. Notwithstanding the foregoing, (i) if without the consent of the Required Lenders, the aggregate amount of Incremental Term Loans and Increased Revolving Credit Commitments obtained after the Closing Date pursuant to this paragraph shall not previously delivered to exceed $100,000,000 and (ii) without the consent of the Administrative Agent, copies certified by the Secretary or Assistant Secretary each increase effected pursuant to this paragraph shall be in a minimum amount of at least $10,000,000. 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.
(Ab) all corporateAny additional bank, partnership, member financial institution or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporateentity which, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Parent Borrower and the GuarantorsAdministrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.28(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit H, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and addressed to the Administrative Agent same extent as if originally a party hereto and shall be bound by and entitled to the Lenders covering such matters as reasonably requested benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent; and (iv) new or replacement , on each Increased Facility Closing Date with respect to the applicable Revolving Notes or Term Notes executed by Credit Facility, the Borrower, payable to any Lenders Parent Borrower shall borrow Revolving Credit Loans under the relevant increased Revolving Credit Commitments from each Lender participating in such Incremental Facility, as applicable, the relevant increase in an amount determined by reference to the amount of such each Type of Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental FacilityCredit Loan (and, any 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 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 on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurocurrency Tranche requested to be so borrowed or effected had been proportionately increased. The Eurocurrency Rate applicable to any Lender that is organized under Eurocurrency Loan borrowed pursuant to the laws of a jurisdiction outside preceding sentence shall equal the Eurocurrency Rate then applicable to the Eurocurrency Loans of the United States other Revolving Credit Lenders in the same Eurocurrency Tranche (or, until the expiration of Americathe then-current Interest Period, provide to the Administrative Agent, its name, address, tax identification number and/or such other information rate as shall be agreed upon between the Parent Borrower and the relevant Revolving Credit Lender).
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Closing Date, this Agreement shall be amended to the extent (but only to the extent) necessary for 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 Parent Borrower’s consent (not to comply with “know your customer” be unreasonably withheld) and Anti-Money Laundering Laws, including without limitation, furnished to the Patriot Actother parties hereto.
Appears in 3 contracts
Sources: Credit Agreement (Conmed Corp), Credit Agreement (Conmed Corp), Credit Agreement (Conmed Corp)
Incremental Facilities. (a) The Borrower shall have may on one or more occasions, by written notice to the right to Agent, request increases in the establishment, during the Availability Period, of Incremental Commitments; provided that the aggregate amount of all the Revolving Incremental Commitments or the making of incremental term loans established hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation 25,000,000 during the term of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increasethis Agreement. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Facility must Commitments shall be an aggregate minimum effective, which shall be a date not less than five (5) Business Days (or such shorter period as may be agreed to by the Agent) after the date on which such notice is delivered to the Agent, and (B) the amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangersthe Incremental Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in consultation with the Borrowerits sole discretion, shall manage all aspects of the syndication of to provide such Incremental FacilitiesCommitment and (y) any Person that the Borrower proposes to become an Incremental Lender, including decisions as to the selection of the existing Lenders and/or other banksif such Person is not then a Lender, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee andand must be approved by the Agent, which approval shall not be unreasonably withheld or delayed).
(b) The terms and conditions of any Incremental Commitment and the Revolving 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; provided that, if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Commitments or Revolving Loans and other extensions of credit made thereunder, such new 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 Commitments or Revolving Loans and other extensions of credit made thereunder, as the case may be.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank providing such Incremental Commitments and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender Agent; provided that no Incremental Commitments shall become effective unless (i) on the date it becomes a Lender hereunder of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and including after giving effect to the increase making of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans thereunder to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payabledate), if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall have occurred and be in existence continuing, (ii) on the effective date of effectiveness thereof and after giving effect to the making of Revolving Loans thereunder to be made on such increasedate, (y) the representations and warranties made or deemed made by of the Borrower and any other set forth in the Loan Party in any Loan Document to which such Loan Party is a party Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects (respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a representation or warranty qualified by materiality or Material Adverse Effectprior date, in which case such representation or and warranty shall be so true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier prior date, (iii) [reserved], (iv) the Borrower shall make any payments required to be made pursuant to Section 2.13 in connection with such Incremental Commitments and the related transactions under this Section, and (v) the Borrower shall have delivered to the Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Revolving Lender” and a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Revolving Lenders and Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Revolving Lenders and Lenders hereunder and under the other Loan Documents, and (ii) (A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Revolving Commitment of such Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Revolving Exposures and the Applicable Percentages of all the Revolving Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Revolving Loans outstanding (the “Existing Revolving Borrowings”) immediately prior to the effectiveness of such Incremental Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Revolving Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage of the Revolving Loans (calculated after giving effect to the effectiveness of such Incremental 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 of the Revolving Loans (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, (iii) each Incremental Lender that shall not have had a Revolving Commitment prior to the effectiveness of such Incremental Commitments shall pay to Agent in same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage of the Revolving Loans (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (iv) after the Agent receives the funds specified in clauses (ii) and (iii) above, the 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 Revolving Lender’s Applicable Percentage of the Revolving Loans (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Revolving Borrowings, and (B) the product of (1) such Lender’s Applicable Percentage of the Revolving Loans (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Revolving Borrowings, (v) after the effectiveness of such Incremental Commitments, the Borrower shall be deemed to have received new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Agent in accordance with Section 2.03 (and the Borrower shall deliver such Borrowing Request), (vi) each Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Commitments), and (zvii) the Administrative Agent Borrower shall have received 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 following, in form and substance satisfactory Existing Revolving Borrowings made pursuant to the Administrative Agent: clause (i) if not previously delivered above shall be subject to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken compensation by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel pursuant to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facilityprovisions of Section 2.13, as applicable, in if the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time date of the effectiveness of such Incremental Commitments occurs other than on the applicable Incremental Facility. In connection with last day of the Interest Period relating thereto.
(f) The Agent shall notify the Lenders promptly upon receipt by the Agent of any notice from the Borrower referred to in Section 2.18(a) and of the effectiveness of any Incremental FacilityCommitments, any Lender becoming a party hereto shall (1) execute such documents and agreements as in each case advising the Administrative Agent may reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside Lenders of the United States details thereof and of America, provide the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent made pursuant to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot ActSection 2.18(e).
Appears in 3 contracts
Sources: Credit Agreement (MSG Entertainment Spinco, Inc.), Credit Agreement (MSG Entertainment Spinco, Inc.), Credit Agreement (Madison Square Garden Co)
Incremental Facilities. The (a) Pursuant to the terms and subject to the conditions hereof, after the Eighth Amendment Effective Date, the Borrower shall have may request, from any Lender or any New Lender, with at least 10 Business Days’ (or such shorter period as may be agreed by the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”Administrative Agent) by providing prior written notice to the Administrative Agent, which notice shall (i) new term loans under one or more new term loan credit facilities to be irrevocable once given; provided, however, that after giving effect to included in this Agreement (the “New Term Loan”) and/or (ii) increases in the amount of Revolving Commitments (any such Incremental Facility new commitments, collectively, the aggregate amount of “New Revolving Commitments” and, any loans made thereunder, the sum of the “New Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers”, in consultation together with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental New Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee andthe “New Loans”), if such new Lender is assuming Revolving Commitments, must be subject to the consent proceeds of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenderswhich, in same day fundseach case, an amount equal to may be used for general corporate purposes (A) the portion such increase of the outstanding principal amount of the Loans or Commitments, a “Facility Increase”).
(b) The terms of such New Term Loans, the New Revolving Commitments or New Revolving Loans, as the case may be, shall be determined by the Borrower and the applicable Lenders or New Lenders providing such New Loans or New Revolving Commitments; provided, that:
(i) such New Term Loans shall (A) have a final maturity no earlier than the Latest Maturity Date and a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of any existing Series of Term Loans; (B) have Applicable Rates and amortization schedules determined by the Borrower and the Lenders or New Lenders with respect thereto; and (C) otherwise be on terms, to the extent not identical to the terms of the initial Term Loans, reasonably satisfactory to the Administrative Agent and the Borrower; and
(ii) such New Revolving Commitments and New Revolving Loans shall be identical to be purchased by the Revolving Commitments and the Revolving Loans.
(c) In connection with any Facility Increase after the Twelfth Amendment Effective Date, such LenderFacility Increase (when aggregated with any outstanding New Loans or New Revolving Commitments), together with the aggregate amount of all Incremental Equivalent Debt incurred under Section 2.18(h), shall not exceed, at the time of incurrence thereof, the sum of (the amount available under clause (A) through (C) below, the “Available Incremental Amount”) (A) an amount equal to the greater of (x) $400,000,000 and (y) 100% of Consolidated Adjusted EBITDA for the most recently ended Measurement Period for which financial statements have been delivered, plus (B) the aggregate amount of payments previously made by any permanent optional reductions of the other Revolving Lenders under Section 2.4.(j) that have not been repaidCommitments, plus (C) interest accrued and unpaid an unlimited amount such that, after giving effect to and as the incurrence of such date on amount (which shall be deemed to include the full amount of any Facility Increase being implemented at such portion of time assuming that the outstanding principal full amount of such Facility Increase had been drawn), the Total Net Leverage Ratio would not exceed 2.5 to 1.0 for the most recently ended Measurement Period for which financial statements have been delivered and calculated on a pro forma basis (but calculating the Total Net Leverage Ratio without netting the cash proceeds from such Loans, and without giving effect to any substantially simultaneous incurrence of Indebtedness made pursuant to clauses (A) or (B) of this Section 2.18(c) or clause (A) of Section 6.01(c)); provided, that each request for New Loans or New Revolving LoansCommitments shall be for a minimum amount of the lesser of (x) $5,000,000 and (y) the entire amount that may be requested under this Section 2.18(c) provided further that the Borrower may elect to use clause (C) of the Available Incremental Amount prior to using clauses (A) or (B) of the Available Incremental Amount, and if both clause (C) and clauses (A) or (B) of the Available Incremental Amount are available, unless otherwise elected by the Borrower, then the Borrower will be deemed to have elected to use clause (C) of the Available Incremental Amount first.
(d) The terms of any New Loans shall be established pursuant to an amendment to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each applicable Lender or New Lender providing such New Loans and the Administrative Agent (each such amendment, an “Incremental Amendment”). Each such Incremental Amendment and all other documentation in respect of such New Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower. The Administrative Agent and the Borrower shall determine the effective date (the “Incremental Effective Date”) of such Incremental Amendment, which shall be promptly notified to the Lenders. Upon the Incremental Effective Date, each applicable Lender or New Lender providing any Incremental Loan shall become a “Lender”, and such Incremental Loan shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower and Administrative Agent shall pay agree to the Revolving Lenders amounts payablesuch procedures, if any, as are necessary to such Revolving Lenders under accomplish the purposes of this Section 5.42.18.
(e) No Lender shall be obligated to provide any New Loans unless it so agrees in its sole discretion. as The Administrative Agent may elect or decline to arrange any New Loans in its sole discretion.
(f) The repayment (other than in connection with a result of scheduled repayment or a repayment at maturity) and the prepayment of any such New Term Loans shall be made on a pro rata basis with all other outstanding Term Loans and the repayment (other than in connection with a repayment at maturity) and the prepayment of any New Revolving Loans shall be made on a pro rata basis with all other outstanding Revolving Loans; provided, that if the applicable Lenders providing such New Loans so agree, such Lenders may participate on a less than pro rata basis in any repayment or prepayment hereunder. Revolving Loans made pursuant On any Incremental Effective Date, subject to any increased Revolving Commitment the satisfaction of the terms and the Incremental Term Loans conditions set forth in this Section 2.18, (i) each of the existing Revolving Lenders shall rank pari passu assign to each of the New Revolving Lenders, and each of the New Revolving Lenders shall purchase from each of the existing Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in right of payment with the New Revolving Commitments outstanding on such Incremental Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Commitments will be held by existing Revolving Lenders and New Revolving Lenders ratably after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments.
(g) No Incremental Amendment shall become effective unless all of the following conditions are met:
(i) Each of the conditions precedent set forth in Section 4.02 are satisfied as of the date of such Incremental Amendment (including the condition that as of the date of such Incremental Amendment, no event shall have occurred and be continuing or would result from the consummation of such Incremental Amendment that would constitute a Default or an Event of Default (provided that, with respect to any New Loans and Term the primary purpose of which is to finance a Limited Condition Transaction, the requirement pursuant to this Section 2.18(g)(i) shall be that no Event of Default under clauses (a) or (b) of Article VII or, solely with respect to the Borrower, clauses (h) or (i) of Article VII, shall exist after giving effect to such New Loans, );
(ii) each Incremental Amendment shall be equally contain a representation and ratably secured with warranty by the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) Borrower that the representations and warranties made or deemed made by of (A) the Borrower contained in Article 3 and any (B) each Loan Party contained in each other Loan Party Document or in any Loan Document to which such Loan Party is a party shall be document furnished at any time under or in connection herewith or therewith are true and correct in all material respects (except in the case without duplication of a representation or warranty qualified by any materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respectsqualifier contained therein) on and as of the effective date of such increase Incremental Amendment, except to the extent that such representations and warranties expressly relate solely specifically refer to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effectdate, in which case such representation or warranty they shall be true and correct in all respects) on and as of such earlier datedate (provided that, with respect to any New Loans the primary purpose of which is to finance a Limited Condition Transaction, the only representations and warranties, the breach or inaccuracy of which shall be a condition to funding, shall be customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Lenders providing such New Loans), and ));
(ziii) the Administrative Agent Loan Parties shall have received each of reaffirm their respective obligations under the following, in form and substance Collateral Documents pursuant to an agreement reasonably satisfactory to the Administrative Agent: ;
(iiv) if not previously requested by the Administrative Agent, constituent documents of the Loan Parties, resolutions (or equivalent authorization) of each Loan Party’s board of directors (or equivalent body) or shareholders (or equivalent), as applicable, approving such Incremental Amendment shall be delivered to the Administrative AgentAgent and an opinion or opinions of counsel reasonably satisfactory to the Administrative Agent as to the enforceability of the Incremental Amendment, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by as amended thereby and such of the other Loan Documents (if any) as may be amended thereby; and
(v) the Borrower, the Administrative Agent and each applicable Lender shall execute and deliver to the Administrative Agent any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement documentation as the Administrative Agent deems shall reasonably necessary or appropriate specify to implement evidence the transaction contemplated by such Incremental Facility contemplated by this Section 2.17.Amendment
(h) The Borrower may utilize the Available Incremental Amount in respect of one or more series of senior unsecured notes or term loans, issued in a public offering, Rule 144A or other private placement or loan origination pursuant to an indenture, credit agreement or otherwise, in an aggregate amount not to exceed, together with the consent aggregate amount of all Facility Increases, the Available Incremental Amount (“Incremental Equivalent Debt”); provided that such Incremental Equivalent Debt (i) does not have a final maturity date earlier than the latest then applicable Maturity Date (as determined as of the Guarantors thereto; date of incurrence of such Incremental Equivalent Debt), or a shorter weighted average life to maturity than the weighted average life to maturity of the Commitments outstanding at such time, (ii) has terms and conditions (other than pricing (including interest rates, rate floors or original issue discount) and fees and, solely with respect to any term loans, amortization and prepayment premiums) no more restrictive than those under the credit facilities provided for herein (except for covenants or other provisions which are provided to the Lenders or are applicable only to periods after the latest then applicable Maturity Date (as determined in good faith by the Borrower as of the date of incurrence of such Incremental Equivalent Debt)), (iii) to the extent guaranteed, shall not be guaranteed by any Person other than the Loan Parties, and (iv) after giving effect to any such Incremental Equivalent Debt and the use of proceeds thereof, the Borrower shall be in compliance with the financial covenant set forth in Section 6.08 on a pro forma basis. To the extent the Borrower provides first lien security for the benefit of all Lenders, the Borrower may utilize the Available Incremental Amount in respect of one or more series of senior secured first lien notes or term loans or senior secured junior lien notes or term loans, issued in a public offering, Rule 144A or other private placement or loan origination pursuant to an opinion of counsel indenture, credit agreement or otherwise, so long as the conditions set forth in the previous sentence are satisfied and (i) such notes or term loans are not secured by any asset that does not also secure the Obligations hereunder on a pari passu basis with liens securing such notes or term loans, and (ii) such notes or term loans shall be subject to customary intercreditor arrangements reasonably satisfactory to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 2 contracts
Sources: Revolving Credit Agreement and Incremental Agreement (Palantir Technologies Inc.), Revolving Credit Agreement and Incremental Agreement (Palantir Technologies Inc.)
Incremental Facilities. The Borrower shall have the right to request increases in the aggregate amount of the Revolving Any Incremental Commitments or the making of incremental term loans hereunder (“new Term Loans made on an Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice Facility Closing Date shall be irrevocable once given; provided, however, that after giving effect to any such designated a separate Class of Incremental Facility the aggregate amount Commitments for all purposes of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation Term Loan Increase or warranty qualified by materiality or Material Adverse Effectan Incremental Revolving Commitment Increase. On any Incremental Facility Closing Date on which any Incremental Term Commitments of any Class are effected (including through any Term Loan Increase), in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase except subject 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each satisfaction of the followingterms and conditions in this Section 2.13, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such each Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty Term Lender of such Incremental Facility; (ii) Class shall make a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel Loan to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 Lender that is Loan Party organized under the laws of the United States, any state thereof, the District of Columbia or any territory thereof may be designated as a jurisdiction outside borrower in respect thereof so long as all obligors under such Incremental Facility are the same as with respect to the Loans hereunder) (an “Incremental Term Loan”) in an amount equal to its Incremental Term Commitment of such Class, and (ii) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto. On any Incremental Facility Closing Date on which any Incremental Revolving Credit Commitments of any Class are effected (including through any Incremental Revolving Commitment Increase), subject to the satisfaction of the terms and conditions in this Section 2.13, (A) each Incremental Revolving Credit Lender of such Class shall make its Incremental Commitment available to the Borrower (or any Loan Party organized under the laws of the United States States, any state thereof, the District of AmericaColumbia or any territory thereof, provide may be designated as a borrower in respect thereof so long as all obligors under such Incremental Facility are the same as with respect to the Administrative AgentLoans hereunder) (when borrowed, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with an “know your customerIncremental Revolving Credit Loan” and Anti-Money Laundering Lawscollectively with any Incremental Term Loan, including without limitationan “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (B) each Incremental Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the Incremental Revolving Credit Loans of such Class made pursuant thereto. Notwithstanding the foregoing, Incremental Term Loans and Incremental Revolving Commitment Increases may have identical terms to any of the Patriot ActTerm Loans or Incremental Revolving Credit Loans, as applicable, and be treated as the same Class as any of such Term Loans or Incremental Revolving Credit Loans, as applicable.
Appears in 2 contracts
Sources: Credit Agreement (WaterBridge Infrastructure LLC), Credit Agreement (WaterBridge Infrastructure LLC)
Incremental Facilities. The (a) Administrative Borrower may, at any time, deliver a written request to Agent to increase the Maximum Credit. Any such written request shall have specify the right to request increases amount of the increase in the Maximum Credit (each such increase, an “Increase”) that Borrowers are requesting, provided, that, (i) in no event shall the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice cause the Maximum Credit to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans50,000,000, (ii) such request shall be equally and ratably secured with the Revolving Loans and Term Loansfor an increase of not less than $5,000,000, (iii) in the case of Incremental Term Loans, no event shall there be more than two (x2) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Datesuch Increases in any calendar year, and (iv) shall be treated substantially as of the same (date of such request, and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) Increase Effective Date, no Default or Event of Default shall be exist.
(b) Upon the receipt by Agent of any such written request, Agent shall notify each of the Lenders of such request and each Lender shall have the option (but not the obligation) to increase the amount of its Commitment by an amount up to its Pro Rata Share of the amount of the increase thereof requested by Administrative Borrower as set forth in existence on the effective date notice from Agent to such Lender. Each Lender shall notify Agent within ten (10) Business Days after the receipt of such notice from Agent whether it is willing to so increase its Commitment, and if so, the amount of such increase; provided, that, no Lender shall be obligated to provide such increase in its Commitment and the determination to increase the Commitment of a Lender shall be within the sole and absolute discretion of such Lender. If the aggregate amount of the increases in the Commitments received from the Lenders does not equal or exceed the amount of the increase in the Maximum Credit requested by Administrative Borrower, Agent (yat the request of Administrative Borrower) may seek additional increases from Lenders or Commitments from such Eligible Transferees as it may determine, after consultation with Administrative Borrower. In the representations and warranties made event Lenders (or deemed made by the Borrower Lenders and any other Loan Party such Eligible Transferees, as the case may be) have committed in any Loan Document writing to which provide increases in their Commitments in an aggregate amount in excess of the increase in the Maximum Credit requested by Borrowers or permitted hereunder, Agent shall then have the right to allocate such Loan Party is a party commitments, first to Lenders and then to Eligible Transferees, in such amounts and manner as Agent may determine, after consultation with Administrative Borrower.
(c) Each of the following shall be true and correct in all material respects (except in the case conditions precedent to any Increase of a representation Commitment and the Maximum Credit in connection therewith:
(i) Agent or warranty qualified by materiality Borrowers have obtained the commitment of one or Material Adverse Effect, in which case more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such representation Lenders (or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier dateprospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (z) the Administrative Agent shall have received each of the followingan “Increase Joinder”), in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary to which such Lenders (or Assistant Secretary of (A) all corporateprospective lenders), partnershipBorrowers, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; Agent are party,
(ii) a supplement 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 this Agreement Agent an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17.Borrowers, together with the consent of the Guarantors thereto; (iii) an opinion of counsel such other documentation as Agent shall reasonably request, in order to the Borrower and the Guarantors, and addressed to the Administrative enable Agent and the Lenders covering such matters as reasonably requested by to comply with any of the Administrative Agent; and requirements under Regulations T, U or X of the Federal Reserve Board, and
(iv) new or replacement Revolving Notes or Term Notes executed by Borrowers have delivered to Agent updated pro forma Projections (after giving effect to the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in applicable Increase) for the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the time of twelve (12) months (on a month-by-month basis) immediately following the effectiveness proposed date of the applicable Incremental Facility. In connection with Increase (calculated as if testing of the covenant in such Section 7 was in effect during the entire twelve (12) month period).
(d) Unless otherwise specifically provided herein, all references in this Agreement and any Incremental Facilityother Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to include Revolving Loans made pursuant to the increased Commitment and Maximum Credit pursuant to this Section 2.14.
(e) If applicable, each of the Lenders having a Commitment prior to the Increase Date (the “Pre-Increase Lenders”) shall assign to any Lender becoming a party hereto which is acquiring an additional Commitment on the Increase Date (the “Post-Increase Lenders”), and such Post-Increase Lenders shall (1) execute purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such documents and agreements as the Administrative Agent may reasonably request and (2) interests in the case Revolving Loans and participation interests in Letters of any 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 Credit on such other information Increase Date as shall be necessary for 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 Lenders and Post-Increase Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Commitment.
(f) The Revolving Loans, Commitment, and Maximum Credit established pursuant to this Section 2.14 shall constitute Revolving Loans, Commitments, and Maximum Credit under, and shall be entitled to all the Administrative 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 comply with “know your customer” ensure and Anti-Money Laundering Lawsdemonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC, including without limitation, or otherwise after giving effect to the Patriot Actestablishment of any such new Commitment and Maximum Credit.
Appears in 2 contracts
Sources: Credit Agreement (CVR Energy Inc), Credit Agreement (CVR Partners, Lp)
Incremental Facilities. The Borrower shall have (a) At any time from and after the right Closing Date, at the option of Borrowers (but subject to request increases the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate amount for all such increases of the Revolving Revolver Commitments or and the making of incremental term loans hereunder Maximum Revolver Amount not to exceed the Available Increase Amount (“Incremental Term Loans”, and any each such increase or Incremental Term Loansincrease, an “Incremental FacilityIncrease”) by providing written notice ). Agent shall invite each Lender to the Administrative Agent, which notice increase its Revolver Commitments (it being understood that no Lender shall be irrevocable once given; providedobligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, howeverand if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, that after giving effect then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to any such Incremental Facility the aggregate Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed at least $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 10,000,000 and integral multiples of $5,000,000 in excess thereof. The ArrangersIn no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than 2 occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in consultation with no event shall the Borrower, shall manage all aspects aggregate amount of the syndication of such Incremental Facilities, including decisions as Increases to the selection Revolver Commitments exceed $25,000,000.
(b) Each of the existing Lenders and/or other banks, financial institutions and other institutional lenders following shall be conditions precedent to be approached with respect to such increase or Incremental Term Loans any Increase of the Revolver Commitments and the allocations thereof among Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such existing Lenders and/or other banks(or prospective lenders), financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party 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 such requested increase must be an Eligible Assignee andIncrease, 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 new Lender is assuming Revolving Commitmentsother documentation as Agent shall reasonably request, must be subject 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, and
(iv) Borrowers shall have reached agreement with the Lenders (or prospective lenders) agreeing to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined increased Revolver Commitments with respect to the Lenders’ respective interest margins applicable to Revolving Loans to be made pursuant to the increased Revolver Commitments (which interest margins may be with respect to Revolving Loans made pursuant to the increased Revolver Commitments, higher than or equal to the interest margins applicable to Revolving Loans set forth in this Agreement immediately prior to the date of the increased Revolver Commitments (the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount, the “Increase Date”)) and shall have communicated the amount of such interest margins to Agent. 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 Documents as may be necessary to effectuate the provisions of this Section 2.14 (including any amendment necessary to effectuate the interest margins for the Revolving Loans to be made pursuant to the increased Revolver Commitments). Anything to the contrary contained herein notwithstanding, if the interest margins (including floors) that is to be applicable to the Revolving Loans to be made pursuant to the increased Revolver Commitments is higher than the interest margins (including floors) applicable to the Revolving Loans immediately prior to the applicable Increase Date (the amount by which such margin is higher, the “Excess”), then the interest margin applicable to the Revolving Loans immediately prior to the Increase Date shall be increased by the amount of 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 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 thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments.
(e) The Revolving Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment establishment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment new Revolver Commitments and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17Maximum Revolver Amount., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 2 contracts
Sources: Credit Agreement (Ranger Energy Services, Inc.), Credit Agreement (Ranger Energy Services, Inc.)
Incremental Facilities. (a) The Administrative Borrower shall have the right upon up to two occasions (i) by written notice to the Administrative Agent (a “Commitment Increase Notice”) to request increases an increase in the aggregate Revolving Commitments, or (ii) to establish one or more additional classes of term loans by an agreement (a “Term Increase Amendment”) in writing entered into by the Administrative Borrower, the Borrower of such term loans (if not the Administrative Borrower), the Administrative Agent and each Person (including any Lender) that shall agree to make a term loan of any class so established. Any increase in the aggregate Revolving Commitments or establishment of an additional class of term loans, and any Term Increase Amendment, shall require the consent only of the Lenders or other Persons increasing their Revolving Commitments or extending new Revolving Commitments or term commitments but not the consents of any other Lenders, and each such Person that shall not already be a Lender shall, at the time such agreement becomes effective, become a Lender with the same effect as if it had originally been a Lender under this Agreement. The amount of any increase of the Revolving Commitments or the making principal amount of incremental any new term loans hereunder (is referred to herein as the “Incremental Term LoansIncrease Amount”, ). It shall be a condition to any increase in the aggregate Revolving Commitments or establishment of an additional class of term loans that at the time of any Commitment Increase Notice and any at the time such increase or Incremental the applicable Term LoansIncrease Amendment would become effective, an “Incremental Facility”as applicable (i) by providing written notice to the Administrative Agent, which notice no Default shall have occurred and be irrevocable once given; provided, however, that continuing or would exist after giving effect to any such Incremental Facility increase in the Revolving Commitments or such additional term loans, (ii) the Administrative Borrower shall be in pro forma compliance with all of the covenants of Section 6.9 after giving effect to such increase in the Revolving Commitments or the borrowing of such additional term loans as if incurred on the first day of the applicable Reference Period, and (iii) the aggregate amount of all Increase Amounts during the sum term of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) this Agreement shall not exceed $650,000,000. The allocation US$50,000,000.
(b) In the case of any an increase between of the aggregate Revolving Commitments and Incremental Term Loans Commitments, the Commitment Increase Notice shall be made at delivered by the Administrative Agent to the Lenders and shall specify a time period selected by the Administrative Borrower requests within which each Lender is requested to respond to such increaseCommitment Increase Notice (which shall in no event be less than ten Business Days from the date of delivery of such Commitment Increase Notice to the Lenders). Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever notify the Administrative Agent within such time period whether or not it agrees to increase its Revolving Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any such Lender not responding within such time period shall be deemed to have declined to increase its Revolving Commitment. The Administrative Agent shall notify the Administrative Borrower and each Lender of the Lenders’ responses to each request made hereunder. After the expiration of the time period set forth in the Commitment Increase Notice or receipt by the Administrative Agent of responses to the Commitment Increase Notice from each of the Lenders, then the Administrative Borrower may, to achieve the full amount of the requested increase in the Revolving Commitments, invite one or more other Persons (other than individuals) (each an “Additional Lender”) that have agreed to provide the Increase Amount and that are acceptable to each of the Administrative Agent, Swingline Lender and Issuing Bank (such consent not to be unreasonably withheld) (it being agreed that any Lender as of the date of the Commitment Increase Notice would be acceptable) may be admitted as a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection accordance with the provisions of Section 10.4(e). None of the Administrative Agent, the Initial Lenders or any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such other Lender shall on have any obligation or other commitment to provide all or any portion of the date it becomes a Lender hereunder (or Increase Amount. Any such increase in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage shall become effective upon written notice by the Administrative Agent (determined with respect to which shall be promptly delivered by the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving CommitmentsAdministrative Agent) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on Lenders specifying the effective date of such increase except in Revolving Commitments, together with a revised Schedule 2.1 stating the new Revolving Commitments, and, in respect thereof, the Revolving Commitment of each Additional Lender, the respective continuing Revolving Commitments of the other Lenders and the new Revolving Credit Exposure of the Lenders. Upon the effective date of the increased Revolving Commitments, each Additional Lender shall make all (if any) such payments to the extent Administrative Agent for distribution to the other Lenders as may be necessary to result in the respective Revolving Loans being held by such Additional Lender and the other Lenders ratably in accordance with their Applicable Percentages. The Administrative Borrower hereby agrees that any Additional Lender so paying any such amount to the other Lenders pursuant to the preceding sentence shall be entitled to all the rights of a Lender having a Revolving Commitment hereunder in respect of such amounts, that such representations payments to such other Lenders shall thereafter constitute Revolving Loans made by such Additional Lender hereunder and warranties expressly relate solely that such Additional Lender may exercise all of its rights of payment with respect to such amounts as fully as if such Additional Lender had initially advanced to the Administrative Borrower directly the amount of such payments. If any such adjustment payments pursuant to the preceding sentences of this Section 2.22 are made by an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except Additional Lender to other Lenders at a time other than the end of an Interest Period in the case of all or any portion of Revolving Loans constituting Eurocurrency Loans or EURIBOR Loans, the Administrative Borrower shall pay to each of the Lenders receiving any such payment, at the time that such payment is made pursuant to this Section 2.22, the amount that would be required to be paid by the Administrative Borrower pursuant to Section 2.15 had such payments been made directly by the Administrative Borrower.
(c) In the case of the establishment of a representation or warranty qualified by materiality or Material Adverse Effectnew class of term loans, in the Term Increase Amendment shall amend the provisions of this Agreement and the other Loan Documents to set forth the terms of the class of loans established thereby, including the amount and final maturity thereof (which case shall not be earlier than the Maturity Date), any provisions relating to amortization (it being agreed that the weighted average life of such representation or warranty loans may be no less than the then current weighted average life of the Term Loans and that there shall be true no provisions for mandatory prepayments of and correct offers to prepay the term loans of any such class) and the interest to accrue and be payable thereon and any fees to be payable in all respects) on and as of such earlier date)respect thereof, and to effect such other changes (zincluding changes to the provisions of Sections 2.17 and 10.2, the definition of “Required Lenders” and any other provision of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights under the Loan Documents or make any determination or grant any consent under the Loan Documents) as the Administrative Borrower and the Administrative Agent shall have received deem necessary or advisable in connection with the establishment of any such class of term loans; provided that no such agreement shall amend Article V, VI or VII to establish any affirmative or negative covenant, Event of Default or remedy that by its terms benefits any such class of term loans but not the then outstanding Classes of Loans and Commitments without the prior written consent of Lenders holding a majority in interest of each such Class. The term loans of the followingany class established pursuant to this Section shall, in form and substance satisfactory to the Administrative Agent: (i) if not previously delivered extent provided in the agreement entered into in connection therewith, be entitled to all the Administrative Agent, copies certified benefits afforded by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantorsother Loan Documents, and addressed to shall benefit equally and ratably from the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot ActSubsidiary Guarantee Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Parexel International Corp), Credit Agreement (Parexel International Corp)
Incremental Facilities. The Borrower (a) At any time during the period from and after the Closing Date through but excluding the date that is one year prior to the Maturity Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). Agent shall have 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 right interest margin proposed by Borrowers, and if sufficient Lenders do not agree to request increases increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than 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 Revolving Increases to the Revolver Commitments exceed $15,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount:
(i) Agent or Borrowers have obtained the making commitment of incremental term loans hereunder one or more Lenders (“Incremental Term Loans”, or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such increase Lenders (or Incremental Term Loansprospective lenders), an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party joinder agreement to this Agreement (an “Increase Joinder”), in connection with any form and substance reasonably satisfactory to Agent, to which such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder Lenders (or prospective lenders), Borrowers, and Agent are party,
(ii) each of the conditions precedent set forth in the case of an existing Lender, increases its Revolving CommitmentSection 3.2 are satisfied,
(iii) Borrowers have delivered to Agent updated pro forma Projections (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the four quarters (on a quarter by quarter basis) immediately following the proposed date of Revolving Commitmentsthe applicable Increase, and
(iv) of any outstanding Revolving Loans, by making available Borrowers shall have reached agreement with the Lenders (or prospective lenders) agreeing to the Administrative Agent for increased Revolver Commitments with respect to the account of such other Lenders, in same day funds, an amount equal interest margins applicable to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus made pursuant to the increased Revolver Commitments (B) which interest margins may be higher than or equal to the aggregate amount of payments previously made by interest margins applicable to Revolving Loans set forth in this Agreement immediately prior to the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal increased Revolver Commitments (the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount, the “Increase Date”)) and shall have communicated the amount of such interest margins to Agent. 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 Documents as may be necessary to effectuate the provisions of this Section 2.14 (including any amendment necessary to effectuate the interest margins for the Revolving LoansLoans to be made pursuant to the increased Revolver Commitments). The Borrower shall pay Anything to the contrary contained herein notwithstanding, if the all-in yield (including interest margins, interest floors, and any original issue discount or similar yield-related discounts or payments, but excluding any arrangement, underwriting, or similar fees payable in connection therewith that are not paid to all Lenders providing the Increase to the Revolver Commitment) that is to be applicable to the Revolving Loans to be made pursuant to the increased Revolver Commitments is higher than the all-in yield (including interest margins, interest floors, and any original issue discount or similar yield-related discounts or payments, but excluding any arrangement, underwriting, or similar fees payable in connection therewith that are not paid to all Lenders amounts payableproviding the Increase to the Revolver Commitment) applicable to the Revolving Loans hereunder immediately prior to the applicable Increase Date (the amount by which all-in yield is higher, if anythe “Excess”), then the interest margin applicable to the Revolving Loans immediately prior to the Increase Date shall be increased by the amount of 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 Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. include Revolving Loans made pursuant to any the increased Revolving Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14.
(d) Each of the Lenders having a Revolver Commitment and prior to the Incremental Term Loans Increase Date (ithe “Pre-Increase Revolver Lenders”) shall rank pari passu assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) participation interests in the case Letters of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence Credit on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Increase Date as shall be necessary for 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 Administrative 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 comply with “know your customer” ensure and Anti-Money Laundering Laws, including without limitation, demonstrate that the Patriot ActLiens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
Appears in 2 contracts
Sources: Credit Agreement (Falcon Capital Acquisition Corp.), Credit Agreement (Falcon Capital Acquisition Corp.)
Incremental Facilities. The On one or more occasions at any time after the Closing Date, the Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) may by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect Agent elect to request (A) an increase to the existing Revolving Credit Commitments (any such increase, the “New Revolving Credit Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “New Term Commitments”, together with the New Revolving Credit Commitments, the “Incremental Facility the Commitments”), by up to an aggregate amount of not to exceed $400,000,000 for all Incremental Commitments (so that the sum of the Maximum Revolving Commitments Credit Amount plus the principal amount of Term Loans (including any such Incremental Term Loans) shall Commitments made hereunder does not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase1,800,000,000). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Facility must Commitments shall be an 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. 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 minimum amount of $25,000,000 and integral multiples 10,000,000, (y) any Lender approached to provide all or a portion of $5,000,000 in excess thereof. The Arrangersthe Incremental Commitments may elect or decline, in consultation with its sole discretion, to provide an Incremental Commitment; provided that (1) the BorrowerLenders will first be afforded the opportunity to provide the Incremental Commitments on a pro rata basis, shall manage all aspects of the syndication and if any Lender so approached fails to respond within such ten (10) Business Day period after its receipt of such Incremental Facilitiesrequest, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in deemed to have declined to provide such Incremental Commitments and (2) any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Credit Lender becoming which is a party to this Agreement in connection with prior to such request for increase that so elects to increase its Revolving Credit Commitment shall be required to increase its Alternative Currency Commitment on a pro rata basis (provided that to the extent any Revolving Credit Lender’s Pro Rata Share of Alternative Currency Commitments was zero prior to such requested increase, then such Lender shall not be required to allocate any portion of such increase must be to an Alternative Currency Commitment), and (z) any Lender or other Person that is an Eligible Assignee and(each, if a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom any portion of such new Lender is assuming Revolving Commitments, must Incremental Commitment shall be allocated shall be subject to the consent approval of each 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. If a new Lender becomes a party to this Agreement(each of which approvals shall not be unreasonably withheld), or if any 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 increasing its Revolving Commitment, such an existing Lender shall on the date it becomes a Lender hereunder (or in the case an Affiliate of an existing Lender, increases its . The terms and provisions of any New Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect Credit Commitments shall be identical to the Lenders’ respective existing Revolving Credit Commitments. The terms and provisions of any New Term Commitments and after giving effect 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 increase of Revolving Commitments) of any outstanding Revolving Loans, by making available existing Term Loans or reasonably acceptable to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such and each New Term Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitments shall pay be subject to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result satisfaction of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to 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 be 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 existence on compliance with the effective date of such increase, financial covenants set forth in Section 10.1 and Section 10.12; (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all 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 (A) all corporate, partnership, member corporate or other necessary action taken by the Borrower to authorize such Incremental Facility Commitments; and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an 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 GuarantorsBorrower), and addressed to the Administrative Agent and the Lenders covering such matters as reasonably Lenders, and (iii) if requested by the Administrative Agent; and (iv) any Lender, new or replacement Revolving Notes or Term 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 participating 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 Incremental FacilityIncreased 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, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2z) in the case of each notice to any Lender that is organized under Revolving Credit Lender, the laws 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 a jurisdiction outside of such increase. The Incremental Commitments shall be evidenced pursuant to one or more Additional Credit Extension Amendments executed and delivered by the United States of AmericaBorrower, provide to the New Revolving Credit Lenders or New Term Lenders, as applicable, and the Administrative Agent, its name, address, tax identification number and/or such other information as 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 for or appropriate, in the opinion of the Administrative Agent Agent, to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, effect the Patriot Actprovisions of this Section 2.1(e).
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Washington Prime Group Inc.), Revolving Credit and Term Loan Agreement (Washington Prime Group Inc.)
Incremental Facilities. The So long as no Event of Default exists or would arise therefrom, the Borrower shall have the right right, at any time and from time to time after the Closing Date to (i) request increases new term loan commitments under one or more new term loan credit facilities to be included in this Agreement and/or increase the aggregate principal amount of the Revolving Commitments or the making any class of incremental term loans hereunder Term Loans (each, an “Incremental Term Facility” and, collectively, the “Incremental Term Loan Commitments”) and/or (ii) increase the Total Revolving Commitment (each, an “Incremental Revolving Facility” and, such commitments, the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans”” and, and together with any such increase or Incremental Term Loans, an “Incremental FacilityLoans”) by providing written notice so long as the aggregate outstanding principal amount of all unutilized Incremental Commitments and Incremental Loans does not exceed the Incremental Amount (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, which notice Agent certifying that the Borrower is in compliance with this Section 4.17). Any Incremental Term Loan Commitment Incurred in the form of increases to any Class of existing Term Loans shall be irrevocable once given; provided, however, that after giving effect identical to any and form part of such Term Loans. Any Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus shall be Incurred in the principal amount form of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between increases to the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 identical to and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount form part of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 2 contracts
Sources: Credit Agreement (Advanced Drainage Systems, Inc.), Credit Agreement (Advanced Drainage Systems, Inc.)
Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”may, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative AgentAgent from time to time, request Incremental Loan Commitments in an amount not to exceed, together with all Incremental Loan Commitments provided to the Borrower pursuant to this Section 2.24 (whether or not utilized), the Incremental Loan Amount from one or more Incremental Lenders, all of which must be Eligible Assignees. Such notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility set forth (i) the aggregate amount of the sum of the Revolving Incremental Loan Commitments plus the principal amount of Term Loans being requested (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans which shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate in minimum increments of $2,500,000 and a minimum amount of $25,000,000 10,000,000 or such lesser amount equal to the remaining Incremental Loan Amount, as applicable, or such other amounts as the Administrative Agent may agree to) and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with (ii) the Borrower, date (an “Increased Amount Date”) on which such Incremental Loan Commitments are requested to become effective (which shall manage all aspects of not be less than 10 Business Days nor more than 60 days after the syndication date of such notice (or such other number of days as the Administrative Agent may agree to)).
(b) The Borrower may seek Incremental Facilities, including decisions as to the selection of the Loan Commitments from existing Lenders and/or other (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders (all of which must be Eligible Assignees consented to by the Swing Line Lender and the Issuing Banks (such consent not to be approached with respect to unreasonably withheld or delayed) (any such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banksadditional bank, financial institutions and institution or other institutional lenderslender, an “Additional Lender”), who will become Incremental Lenders in connection therewith. No The Borrower and each Incremental Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, execute and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available deliver to the Administrative Agent for the account of an Incremental Loan Assumption Agreement and such other Lenders, in same day funds, an amount equal documentation as the Administrative Agent shall reasonably specify to (A) evidence the portion Incremental Loan Commitment of each Incremental Lender or Additional Lender. The terms and provisions of the outstanding principal amount of such Revolving Incremental Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case identical to those of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting All Incremental Loan Commitments shall be documented solely as an increase to the Revolving Credit Commitments and all Incremental Loans shall be identical to all Revolving Loans, other than in respect of any arrangement, commitment or upfront fees payable to any Incremental Facility Lenders or any arranger appointed in connection therewith in connection with such increase to the Revolving Credit Commitments on or prior to the Increased Amount Date in respect thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitments and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence 2.24 unless, on the effective date of such increaseeffectiveness, (yi) the representations conditions set forth in Sections 4.01(b), 4.01(c) and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party 4.01(d) shall be true satisfied and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Borrower would be in Financial Covenant Compliance, (iii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the followingIncremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in form respect of such Incremental Loan Commitments and substance (v) the terms and documentation in respect of such Incremental Loan Commitments, to the extent not consistent with this Agreement and the other Loan Documents, shall be reasonably satisfactory to the Administrative Agent: .
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15.
(e) On any Increased Amount Date on which Incremental Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) if not previously delivered each of the existing Revolving Credit Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Revolving Credit Lenders, at the principal amount thereof, such interests in the outstanding Revolving Loans and participations in Letters of Credit and Swing Line Loans outstanding on such Increased Amount Date that will result in, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit and Swing Line Loans being held by existing Revolving Credit Lenders and Incremental Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty addition of such Incremental Facility; Loan Commitments to the Revolving Credit Commitments, (ii) each Incremental Loan Commitment shall be deemed for all purposes a supplement to this Agreement executed by Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and have the Borrowersame terms as any existing Revolving Loan, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel each Incremental Lender shall become a Lender with respect to the Borrower Revolving Credit Commitments and all matters relating thereto.
(f) The proceeds of any Incremental Loans shall be used for the Guarantorspurposes specified in the introductory statement to this Agreement, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 Lender that is organized extent permitted 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 Laws, including without limitation, the Patriot ActAgreement.
Appears in 2 contracts
Sources: Credit Agreement (Tallgrass Energy GP, LP), Credit Agreement (Tallgrass Energy GP, LP)
Incremental Facilities. The Borrower shall have (a) At any time during the right period from and after the Closing Date, at the option of Borrowers (but subject to request increases the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate amount for all such increases of the Revolving Revolver Commitments or and the making of incremental term loans hereunder Maximum Revolver Amount not to exceed the Available Increase Amount (“Incremental Term Loans”, and any each such increase or Incremental Term Loansincrease, an “Incremental FacilityIncrease”) by providing written notice ). Agent may invite one or more Lenders to the Administrative Agent, which notice increase its Revolver Commitments (it being understood that no Lender shall be irrevocable once given; providedobligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by ▇▇▇▇▇▇▇▇▇, however, that after giving effect and Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to any such Incremental Facility the aggregate Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed at least $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 50,000,000 and integral multiples of $5,000,000 10,000,000 in excess thereof. The Arrangers.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in consultation with the Borrowerform and substance reasonably satisfactory to Agent, to which such Lenders (or prospective lenders), Borrowers, and Agent are party,
(ii) any prospective Lender shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or be an Eligible Transferee and not constitute a Disqualified Institution,
(iii) (x) other banks, financial institutions and other institutional lenders to be approached than with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement an Increase in connection with a Permitted Acquisition or any such requested increase must be an Eligible Assignee andother Permitted Investment, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made unless required by the other Revolving Lenders under Section 2.4.(j) that have not been repaidproviding such Increase, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by each Loan Party contained herein and in the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party 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 case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respectstext thereof) on and as of the effective date of such increase extension of credit, as though made on and as of such date (except to the extent that such representations and warranties expressly relate solely to an earlier date (date, in which case such representations and warranties shall have been 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 case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respectstext thereof) on and as of such earlier date) and (y) no Specified Event of Default shall have occurred and be continuing,
(iv) 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 (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17.Borrowers, together with the consent of the Guarantors thereto; (iii) an opinion of counsel such other documentation as Agent shall reasonably request, in order to the Borrower and the Guarantors, and addressed to the Administrative enable Agent and the Lenders covering such matters to comply with any of the requirements under Regulations T, U or X of the Board of Governors,
(v) [reserved]
(vi) the interest rate margins with respect to the Revolving Loans to be made pursuant to the increased Revolver Commitments shall be the same as reasonably requested by the Administrative Agent; and (iv) new or replacement interest rate margins applicable to Revolving Notes or Term Notes executed by Loans hereunder immediately prior to the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time date of the effectiveness of the applicable Incremental Facilityincreased Revolver Commitments and the Maximum Revolver Amount (the “Increase Date”). In connection Any Increase Joinder may, with any Incremental Facilitythe consent of Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.14, and
(vii) such Increase shall be permitted under the Second Lien Notes Documents, any Additional Permitted Junior Lien Indebtedness Documents and the Intercreditor Agreement, in each case, in a manner satisfactory to Agent.
(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 becoming which is acquiring a party hereto new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall (1) execute purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such documents and agreements as the Administrative Agent may reasonably request and (2) interests in the case Revolving Loans and participation interests in Letters of any 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 Credit on such other information Increase Date as shall be necessary for 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 Administrative 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 comply with ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
(f) Upon each Increase in the Revolver Commitments and Maximum Revolver Amount established pursuant to this Section 2.14, the dollar thresholds for Excess Availability and Specified Availability set forth in each of the definitions of “know your customerCash Dominion Event”, “Cash Dominion Period”, “Covenant Trigger Event”, “Covenant Testing Period, “Increased Examination Event”, “Increased Reporting Event” and Anti-Money Laundering Laws, including without limitation, “Increased Reporting Period and clause (b) of the Patriot Actdefinition of “Payment Conditions” shall be increased in proportion to the amount of such Increase.
Appears in 2 contracts
Sources: Credit Agreement (EquipmentShare.com Inc), Credit Agreement (EquipmentShare.com Inc)
Incremental Facilities. The (a) Subject to Section 2.11(b), the Borrower shall have the right may by written notice to Agent elect to request increases the establishment of one or more Incremental Term Loan commitments (the “Incremental Term Loan Commitments”), in the an aggregate amount of up to $10,000,000. Each such notice shall specify the Revolving Commitments or date (an “Increased Amount Date”) on which the making of incremental term loans hereunder (“Borrower proposes that the Incremental Term Loans”Loan Commitments shall be effective, and any which shall be a date not less than 30 days after the date on which such increase notice is delivered to the Agent. The opportunity to commit to provide all or a portion of the Incremental Term LoansLoan Commitment shall be offered by the Borrower to any Eligible Incremental Lenders. To the extent any Eligible Incremental Lenders have provided a commitment to provide such Incremental Term Loan Commitment, an “Incremental Facility”) by providing written notice the Borrower shall provide a copy of such commitment letter to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect Agent for distribution to any the existing Lenders and offer the existing Lenders the opportunity to provide such Incremental Facility Term Loan Commitment on the aggregate amount same terms as set forth in such commitment letter (the date the Agent receives such commitment letter, the “Notice Date”). If the existing Lenders have not agreed in writing to provide such Incremental Term Loan Commitment within 15 days of the sum Notice Date, then the Eligible Incremental Lenders may provide the Incremental Term Loan Commitment on the terms of such commitment letter and subject to this Section 2.11. Any existing Lender approached to provide all or a portion of such Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Term Loan Commitment.
(b) Such Incremental Term Loan Commitments shall become effective, as of such Increased Amount Date, subject to the satisfaction of each of the Revolving Commitments plus following conditions:
(i) [reserved];
(ii) the principal amount Agent has obtained the commitment of one or more Incremental Term Loans (including Loan Lenders to provide the applicable Incremental Term Loan and any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between Loan Lenders, the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party Agent have signed an amendment to this Agreement in connection with any pursuant to which such requested increase must be an Eligible Assignee andIncremental Term Loan Lenders agree to make, if such new Lender is assuming Revolving Commitments, must be subject to the consent terms of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect term loan to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving CommitmentsBorrower (an “Incremental Term Loan”) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of its Incremental Term Loan Commitment and to otherwise evidence such Revolving Loans to be purchased by such LenderIncremental Term Loan, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued in form and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay substance reasonably satisfactory to the Revolving Lenders amounts payableAgent (each, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, “Joinder Agreement”);
(iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence exist on the effective date of such increase, Increased Amount Date;
(yiv) the representations and warranties made or deemed made by of the Borrower Credit Parties contained in this Agreement and any the other Loan Party in any Loan Document to which such Loan Party is a party Documents shall be true and correct in all material respects (except in the case of a representation that such materiality qualifier shall not be applicable to any representations or warranty warranties that already are qualified by materiality or modified as to “materiality” or “Material Adverse Effect” in the text thereof, in which case such representation or warranty representations and warranties shall be true and correct in all respectsrespects subject to such qualification) on the effective date as of such increase 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 that such representations and warranties expressly specifically relate solely to an earlier date (date, in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation that such materiality qualifier shall not be applicable to any representations or warranty warranties that already are qualified by materiality or modified as to “materiality” or “Material Adverse Effect” in the text thereof, in which case such representation or warranty representations and warranties shall be true and correct in all respectsrespects 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 increased by the amount of the Excess minus 50 basis points, effective on the applicable Increased Amount Date, and without the necessity of any action by any party hereto.
(zc) The Incremental Term Loan Lender shall make an Incremental Term Loan subject to the Administrative Agent shall have received satisfaction of each of the following, in form and substance satisfactory to the Administrative Agent: following conditions:
(i) if each of the conditions set forth in Section 4.2 shall have been satisfied on the applicable Credit Date; and
(ii) any such Incremental Term Loan shall be in an aggregate amount of at least $5,000,000 and integral multiples of $1,000,000 above such amount (except, in each case, such minimum amount and integral multiples amount shall not previously delivered apply when the Borrower uses all of the Incremental Term Loan Commitments available at such time).
(d) On any Increased Amount Date on which any Incremental Term Loan Commitments of any tranche are effective, subject to the Administrative Agentsatisfaction of the foregoing terms and conditions, copies certified by each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Secretary Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate Class for all purposes of this Agreement.
(e) The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments shall be, except as otherwise set forth herein or Assistant Secretary of (A) all corporatein a Joinder Agreement, partnership, member or other necessary action taken by identical to the Borrower Term Loan immediately prior to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty making of such Incremental Facility; (ii) a supplement to this Term Loan. Each such Joinder Agreement executed by may, without the Borrowerconsent of any other Lenders, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include effect such amendments to this agreement Agreement and the other Loan Documents as the Administrative Agent deems reasonably may be necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicableappropriate, in the amount reasonable opinion of such Revolving Lender’s Revolving Commitment or aggregate Agent, to effect the provision of this Section 2.11. All Incremental Term Loans at shall be secured on a pari passu basis with the time Term Loans, shall not be secured by a Lien on any assets of the effectiveness of Borrower or any Guarantor not constituting Collateral and shall not be guaranteed by any person other than the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot ActGuarantors.
Appears in 2 contracts
Sources: Credit Agreement (Rent the Runway, Inc.), Credit Agreement (Rent the Runway, Inc.)
Incremental Facilities. The Borrower shall have the right to request increases in the aggregate amount (a) Provided there exists no Default or Event of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”Default, and subject to the conditions set forth in clause (f) below, the Borrower may at any such increase time or Incremental Term Loansfrom time to time after the Closing Date, an “Incremental Facility”) by providing written notice to the Administrative AgentAgent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility request (i) one or more tranches of new term loans (“New Term Loans”) under one or more new term facilities (each a “New Term Loan Facility”) or (ii) one or more increases in the aggregate total amount of the sum of the Revolving Commitments plus the principal amount of (each an “Additional Term Commitment”) and any Loans advanced pursuant to such Additional Term Commitments being Term Loans (including for all purposes of this Agreement, up to an aggregate total amount with respect to all New Term Loans or Term Loans made as a result of any such Incremental Additional Term Loans) shall Commitments not to exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum 20,000,000 or a lesser amount of $25,000,000 and in integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental 5,000,000.
(i) Each New Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to Loan Facility (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Term Loan A, shall rank senior in right of payment to the Term Loan B, and shall rank pari passu in right of security and rights under the Subsidiary Guarantees and in and to the Collateral with the other Term Loans and (B) shall not mature prior to the latest Maturity Date applicable to the Term LoansLoan A, shall not have an Average Life shorter than the Average Life of the Term Loan A and shall not be subject to amortization, (ii) the New Term Loans in respect to such New Term Loan Facility shall be equally and ratably secured with the Revolving Loans and Term Loansentitled to share in all prepayments pursuant to Section 2.03 as specified in Section 2.03(c), (iii) each New Term Loan shall bear interest at a fixed rate per annum, provided that, in the case of Incremental Term Loans, (x) shall not mature earlier than event that such interest rate exceeds the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior interest rate relating to the Term Loan Maturity DateA immediately prior to the effectiveness of the applicable New Term Loan Facility, the interest rate for the Term Loan A shall be adjusted to be at least equal to the interest rate relating to such New Term Loan Facility, provided further, that in determining the interest rate for the New Term Loan Facility solely for the purpose of this Section, (A) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable to the New Lenders providing New Term Loan Commitments in the initial primary syndication thereof shall be included and equated to interest (with OID or upfront fees being equated to interest based on an assumed four-year life to maturity), and (B) customary arrangement, underwriting, structuring or commitment fees payable to one or more arrangers (or their affiliates) of the New Term Loan Facility shall be excluded, and provided further, that, in the event that the New Lenders are paid or earn any fees in excess of the Closing Fee and Exit Fee payable on the Term Loan A or on better terms, an amount equal to such incremental fees shall be paid to, or such better terms shall be offered to, the Term Loan A Lenders, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date all other terms of such increaseNew Term Loans, if not consistent with the terms of the Term Loans, (yA) the representations and warranties made or deemed made by will be as agreed between the Borrower and any other Loan Party in any Loan Document to which the New Lenders providing such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility New Term Loans and (B) all corporateshall not be more restrictive than the terms of the existing Term Loans unless the Lenders under the Term Loans also receive the benefit of the more restrictive terms (without any consent being required); provided that the terms of the New Term Facility may include pro rata mandatory prepayment requirements for asset sales and other mandatory prepayment events so long as such mandatory prepayment events shall also apply to Term Loans.
(c) Any Term Loans made in connection with or pursuant to any Additional Term Commitments shall have the same terms and conditions as the Term Loans applicable thereto.
(d) Each notice from the Borrower pursuant to this Section 2.10 shall set forth (i) with respect to any Additional Term Commitments, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty requested amount of such Incremental Facility; Additional Term Commitments, the proposed effective date for the making of Term Loans pursuant to such Additional Commitments (the “Additional Commitment Effective Date”) and the amount of OID or upfront fees payable in connection with such Additional Term Commitments and (ii) a supplement with respect to this Agreement executed by the Borrowerany New Term Loan Facility, the Administrative Agent requested amount of New Term Loans, the proposed terms of the relevant New Term Loan Facility and any Lender providing the proposed effective date for the making of such Incremental Facility, which supplement may include such amendments to this agreement as New Term Loan Facility (the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., “New Term Loan Effective Date” and together with any Additional Commitment Effective Date, the consent “Increase Effective Date”). New Term Loans or Additional Term Commitments may be made or provided by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of the Guarantors theretoany New Term Loan or provide any Additional Term Commitment) or by any other bank or other financial institution (any such other bank or other financial institution being called a “New Lender”); (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed provided any such New Lenders shall be reasonably acceptable to the Administrative Agent and the Lenders covering such matters Borrower.
(e) Commitments in respect of New Term Loans (“New Term Loan Commitments”) and Additional Term Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as reasonably requested by appropriate, the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes other Loan Documents, executed by the Borrower, payable each New Lender, any other Lender providing a New Term Loan or Additional Term Commitment and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lender, effect such amendments to any Lenders participating in such Incremental Facility, this Agreement (including amendments to Schedule IA or IB) and the other Loan Documents as applicablemay be necessary, in the amount reasonable opinion of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case Borrower, to effect the provisions of any 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 this Section 2.10. The Administrative Agent may take any and all action as may be reasonably necessary to comply with “know your customer” and Anti-Money Laundering Lawsensure that any Term Loans made pursuant to any Additional Term Commitment, including without limitationwhen originally made, the Patriot Actare included in each Borrowing of outstanding Term Loans on a pro rata basis.
Appears in 2 contracts
Sources: Senior Secured Term Loan Credit Agreement (Pacific Ethanol, Inc.), Senior Secured Term Loan Credit Agreement (Aventine Renewable Energy Holdings Inc)
Incremental Facilities. (a) The Borrower shall have may on one or more occasions, by written notice to the right to Agent, request increases in the establishment, during the Availability Period, of Incremental Commitments, provided that the aggregate amount of all the Revolving Incremental Commitments established hereunder shall not exceed the Incremental Facility Maximum Amount during the term of this Agreement. Each such notice shall specify (A) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than five Business Days (or such shorter period as may be agreed to by the making of incremental term loans hereunder (“Incremental Term Loans”Agent) after the date on which such notice is delivered to the Agent, and any such increase or Incremental Term Loans, an “Incremental Facility”(B) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans Incremental Commitments, being requested (including it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Term LoansCommitment and (y) shall any Person that the Borrower proposes to become an Incremental Lender, if such Person is not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangersthen a Lender, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee andand must be approved by the Agent, which approval shall not be unreasonably withheld or delayed).
(b) The terms and conditions of any Incremental Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and the Loans and other extensions of credit made thereunder; provided that, if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Commitments or Loans and other extensions of credit made thereunder, such new increase shall be permitted if the interest rate or fees payable in respect of the other Commitments or Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Commitments or Loans and other extensions of credit made thereunder, as the case may be.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank providing such Incremental Commitments and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender Agent; provided that no Incremental Commitments shall become effective unless (i) on the date it becomes a Lender hereunder of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and including after giving effect to the increase making of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans thereunder to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payabledate), if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall have occurred and be in existence continuing, (ii) on the effective date of effectiveness thereof and after giving effect to the making of Loans thereunder to be made on such increasedate, (y) the representations and warranties made or deemed made by of the Borrower and any other set forth in the Loan Party in any Loan Document to which such Loan Party is a party Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects (respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a representation or warranty qualified by materiality or Material Adverse Effectprior date, in which case such representation or and warranty shall be so true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier prior date, (iii) after giving effect to such Incremental Commitments, the Maximum Available Amount shall not exceed the maximum aggregate principal amount of secured Indebtedness of the Borrower permitted by the NHL to be outstanding at such time, (iv) the Borrower shall make any payments required to be made pursuant to Section 2.13 in connection with such Incremental Commitments and the related transactions under this Section, and (v) the Borrower shall have delivered to the Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Agent, to give effect to the provisions of this Section.
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents, and (ii) (A) such Incremental Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) the Aggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to further increase or reduction from time to time as set forth in the definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Exposures and the Applicable Percentages of all the Lenders shall automatically be adjusted to give effect thereto.
(e) On the date of effectiveness of any Incremental Commitments, (i) the aggregate principal amount of the Loans outstanding (the “Existing Borrowings”) immediately prior to the effectiveness of such Incremental Commitments shall be deemed to be repaid, (ii) each Incremental Lender that shall have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to the Agent in same day funds an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Borrowings (as hereinafter defined) and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Borrowings, (iii) each Incremental Lender that shall not have had a Commitment prior to the effectiveness of such Incremental Commitments shall pay to Agent in same day funds an amount equal to the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Borrowings, (iv) after the Agent receives the funds specified in clauses (ii) and (iii) above, the Agent shall pay to each Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Existing Borrowings, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the aggregate amount of the Resulting Borrowings, (v) after the effectiveness of such Incremental Commitments, the Borrower shall be deemed to have made new Borrowings (the “Resulting Borrowings”) in an aggregate amount equal to the aggregate amount of the Existing Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Agent in accordance with Section 2.03 (and the Borrower shall deliver such Borrowing Request), (vi) each Lender shall be deemed to hold its Applicable Percentage of each Resulting Borrowing (calculated after giving effect to the effectiveness of such Incremental Commitments), and (zvii) the Administrative Agent Borrower shall have received pay each Lender any and all accrued but unpaid interest on its Loans comprising the Existing Borrowings. The deemed payments of the following, in form and substance satisfactory Existing Borrowings made pursuant to the Administrative Agent: clause (i) if not previously delivered above shall be subject to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken compensation by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel pursuant to the Borrower and provisions of Section 2.13 if the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time date of the effectiveness of such Incremental Commitments occurs other than on the applicable Incremental Facility. In connection with last day of the Interest Period relating thereto.
(f) The Agent shall notify the Lenders promptly upon receipt by the Agent of any notice from the Borrower referred to in Section 2.18(a) and of the effectiveness of any Incremental FacilityCommitments, any Lender becoming a party hereto shall (1) execute such documents and agreements as in each case advising the Administrative Agent may reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside Lenders of the United States details thereof and of America, provide the Applicable Percentages of the Lenders after giving effect thereto and of the assignments required to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent made pursuant to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot ActSection 2.18(e).
Appears in 2 contracts
Sources: Credit Agreement (Madison Square Garden Sports Corp.), Credit Agreement (Madison Square Garden Co)
Incremental Facilities. (a) The Parent Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”may, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative AgentAgent at any time prior to the Maturity Date, request Incremental Term Loans and/or Incremental Revolving Commitments in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which notice may include any existing Lender, it being understood each existing Lender shall be irrevocable once givenhave no obligation to participate in any Incremental Facility) willing to provide such Incremental Term Loans and/or Incremental Revolving Loans, as the case may be; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such each Incremental Term Loans) shall Lender and/or Incremental Revolving Lender, if not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borroweralready a Lender hereunder, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent approval of each the Administrative Agent and, in the case of Incremental Revolving Lenders only, the Issuing Bank and the Swingline LenderLender (which approval shall, in either case, not be unreasonably withheld). If Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Term Loans, in minimum increments of $50,000,000, (y) with respect to Incremental Revolving Commitments, in minimum increments of $10,000,000 or (z) equal to the remaining Incremental Amount), (ii) the date, which shall be a new Lender becomes Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice, (iii) whether such Incremental Term Loans and/or Incremental Revolving Commitments are to be loans on the same terms as the outstanding Term Loans and/or Revolving Commitments or loans with terms different from the outstanding Term Loans and/or Revolving Commitments, (iv) the use of proceeds for such Incremental Term Loan and/or Incremental Revolving Commitment and (v) pro forma financial statements demonstrating compliance on a party pro forma basis with the financial covenants set forth in Sections 6.10 and 6.11 after giving effect to this Agreement, or such Incremental Term Loan and/or Incremental Revolving Commitments and the Loans to be made thereunder and the application of the proceeds therefrom (including by giving pro forma effect to any Permitted Acquisition including aggregate consideration in excess of $20,000,000 financed thereby) as if any existing Lender is increasing its Revolving Commitment, such Lender shall made and applied on the date it becomes a of the most-recent financial statements of the Parent Borrower delivered pursuant to Section 5.01.
(b) The Borrowers and each Incremental Term Lender hereunder (or in and/or Incremental Revolving Lender shall execute and deliver to the case Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loans of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its such Incremental Term Lender and/or Incremental Revolving Commitment Percentage of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder; provided that (i) the proceeds of any Incremental Facilities shall be used for general corporate purposes of the Parent Borrower and its Subsidiaries (including acquisitions and investments permitted under Section 6.04), (ii) the maturity date of any Incremental Term Loan shall be no earlier than the Maturity Date, (iii) the weighted average life to maturity of any Incremental Term Loan shall be no shorter than the weighted average life to maturity of the existing Term Facility, (iv) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Maturity Date and such Incremental Revolving Facility shall not require any scheduled commitment reductions prior to the Maturity Date, (v) the Incremental Revolving Facilities shall share ratably in any mandatory prepayments of the existing Revolving Loans, (vi) if the initial yield over the applicable base rate (such calculation for both the Incremental Facility and the applicable Facility, to include the upfront fees, any interest rate floors and any OID (as defined below) but excluding any arrangement, underwriting or similar fee paid to the Administrative Agent or the Commitment Parties) in respect of any Incremental Term Loans and/or Incremental Revolving Commitments exceeds the initial yield for the existing applicable Facility by more than ¼ of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the existing applicable Facility shall be increased so that the initial yield in respect of such Incremental Term Loans and/or Incremental Revolving Commitments is no more than ¼ of 1% higher than the initial yield for the existing applicable Facility. All terms and documentation with respect to any Incremental Facility which differ from those with respect to the Lenders’ respective Revolving Commitments and after giving effect to Loans under the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available existing applicable Facility shall be reasonably satisfactory to the Administrative Agent for (except to the account extent permitted by clauses (ii), (iii), (iv) and (vi) above). The Administrative Agent shall promptly notify each Lender as to the effectiveness of such other Lenders, in same day funds, an amount equal to (A) the portion each Incremental Assumption Agreement. Each of the outstanding principal amount parties hereto hereby agrees that, upon the effectiveness of such Revolving Loans to any Incremental Assumption Agreement, this Agreement shall be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay amended to the Revolving Lenders amounts payable, if any, extent (but only to such Revolving Lenders under Section 5.4. as a result the extent) necessary to reflect the existence and terms of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.24 unless (i) on the date on which such Loan is made or of such effectiveness, the conditions set forth in Section 4.02 shall rank pari passu in right be satisfied by the Incremental Term Lender and /or Incremental Revolving Lender, as applicable, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by the President or the Chief Financial Officer or Treasurer of payment with the Revolving Loans and Term Loanseach Borrower, (ii) the Administrative Agent shall be equally have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Sixth Amendment and Restatement Effective Date under Section 4.01 and such additional documents and filings (including amendments to the Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans and/or Incremental Revolving Loans are secured by the Collateral and guaranteed by the Loan Parties ratably secured with the Revolving Loans and Term existing Loans, (iii) the Parent Borrower and its Subsidiaries would be in compliance with the case of financial covenants set forth in Sections 6.10 and 6.11 on a pro forma basis after giving effect to such Incremental Term Loans, (x) shall not mature earlier than Loans and/or Incremental Revolving Commitments and the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to made thereunder and the Term Loan Maturity Dateapplication of the proceeds therefrom as if made and applied on such date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall have occurred and be in existence continuing on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to on which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation made or warranty qualified by materiality is effective or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase except after giving effect to the extent that Incremental Term Loans and/or Incremental Revolving Loans requested to be made on such representations and warranties expressly relate solely to an earlier date date.
(in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respectsd) on and as of such earlier date), and (z) the Administrative Agent shall have received each Each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party parties hereto shall (1) execute such documents and agreements as hereby agrees that the Administrative Agent may take any and all action as may be reasonably request necessary to ensure that all Incremental Term Loans and/or Incremental Revolving Loans, when originally made, are included in each borrowing of outstanding Term Loans or Revolving Loans on a pro rata basis, and (2) in the case Borrower agrees that Section 2.19 shall apply to any conversion of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide Eurocurrency Loans to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for ABR Loans reasonably required by the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Lawseffect the foregoing. For the avoidance of doubt, including without limitation, it is understood that the Patriot ActRevolving Facility shall be increased in an amount equal to the aggregate Incremental Revolving Commitments.
Appears in 1 contract
Sources: Credit Agreement (Charles River Laboratories International Inc)
Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall have make, obtain or increase the right amount of their Incremental Term Loans (which may be effected by increasing the amount of any then existing Facility) by executing and delivering to request increases in the Administrative Agent an Incremental Term Loan Activation Notice specifying (v) the amount of such Incremental Term Loans, (w) the applicable Incremental Term Loan Closing Date (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 earlier date as shall be agreed by the Administrative Agent)), (x) the applicable Incremental Term Loan Maturity Date, (y) the amortization schedule for such Incremental Term Loans and (z) the Applicable Margin for such Incremental Term Loans; provided, that (i) the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“all Incremental Term Loans”Loans established on any date, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility together with the aggregate amount of Incremental Equivalent Debt incurred on such date, shall not exceed the sum Available Incremental Amount as of the Revolving Commitments plus the such date, (ii) each Incremental Term Facility shall be in a minimum aggregate principal amount of $25,000,000 (or such lesser amount as may be approved by the Administrative Agent in its reasonable discretion), (iii) the Incremental Term Loans in respect of any Incremental Term Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (including A) if guaranteed, guaranteed on a pari passu basis or junior basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) unsecured or secured by the Collateral (and no other property) and the Liens on the Collateral securing such Incremental Term Loans and all other obligations in respect thereof shall be pari passu with, or junior to, the Liens on the Collateral securing all of the other Obligations under this Agreement and the other Loan Documents, (iv) the Incremental Term Loans in respect of any Incremental Term Facility will be entitled to prepayments on the same basis as the Initial Term Loans unless the applicable Incremental Term Loan Activation Notice specifies a lesser treatment, (v) such Incremental Term Loans shall have a final maturity no earlier than the Latest Maturity Date (determined immediately prior to incurrence of such Incremental Term Loans) (provided that this clause shall not exceed $650,000,000. The allocation apply to the incurrence of any increase Incremental Term Loans consisting of Customary Bridge Loans so long as the related Extended Bridge Loans would satisfy this clause (v)), (vi) the weighted average life to maturity of such Incremental Term Facility shall be no shorter than that of any existing Term Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term Loans) (provided that this clause shall not apply to the incurrence of any Incremental Term Loans consisting of Customary Bridge Loans so long as the related Extended Bridge Loans would satisfy this clause (vi)), (vii) the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors) and (subject to clauses (v) and (vi) above) amortization schedule applicable to such Incremental Term Facility shall be determined by the Borrower and the Lenders providing such Incremental Term Facility, provided that, in the event that the all-in-yield for any Incremental Term Facility that is secured on a pari passu basis with the Initial Term Facility incurred on or prior to the six-month anniversary of the Closing Date shall be more than 50 basis points higher than the corresponding all-in-yield for any then-existing Initial Term Loans as determined by the Administrative Agent in accordance with standard market practices (after giving effect to interest rate margins, original issue discount, upfront fees or interest rate floors, but excluding arrangement, structuring, underwriting or commitment fees, consent fees paid to consenting Lenders or other fees that are not paid generally to all lenders of such Incremental Term Loans), then the all-in-yield with respect to the outstanding Initial Term Loans shall be increased to the amount necessary so that the difference between the Revolving all-in-yield with respect to the Incremental Term Facility and the all-in-yield on the outstanding Initial Term Loans is equal to 50 basis points (it being agreed that (x) original issue discount and upfront fees shall be equated to interest on the basis of a four-year average life and (y) any increase in yield to any then-existing Initial Term Loans required due to the application of an interest rate floor shall be effected solely through an increase in (or implementation of, as applicable) any interest rate floor applicable to such then existing Initial Term Loans) (the foregoing, the “MFN Provision”) and (viii) the terms of any Incremental Term Facility shall be on terms and pursuant to documentation to be determined; provided that such terms shall (except to the extent permitted by clause (vi) or (vii) above) be consistent with the terms of the Initial Term Facility or not materially more favorable (taken as a whole) to the Lenders of the applicable Incremental Term Facility compared to the existing Facilities, as determined in good faith by the Borrower and evidenced by a certificate of a Responsible Officer of the Borrower, or otherwise reasonably satisfactory to the Administrative Agent (it being understood that (x) no consent shall be required to the extent such terms apply only after the Latest Maturity Date and (y) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of the existing Facilities). 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 the Borrower shall have no obligation to offer to any Lender the opportunity to so participate. Any Incremental Term Loan Commitments established pursuant to an Incremental Term Loan Activation Notice that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount for all purposes of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangersthis Agreement.
(b) Any additional bank, in consultation financial institution or other entity which, with the Borrower, shall manage all aspects consent of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans Borrower and the allocations thereof among such existing Lenders and/or other banksAdministrative Agent (which consent shall not be unreasonably withheld), financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever elects to increase its Revolving Commitment or provide become a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit I-2, whereupon such requested increase must 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 an Eligible Assignee andbound by and entitled to the benefits of this Agreement.
(c) [Reserved].
(d) Each Incremental Term Loan Activation Notice may, if such new Lender is assuming Revolving Commitments, must be subject to without the consent of each Issuing Bank any Lender (other than the applicable Incremental Term Lenders) effect such amendments to this Agreement and the Swingline Lender. If a new Lender becomes a party to this Agreementother Loan Documents as may be necessary or appropriate, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case opinion of an existing Lenderthe Administrative Agent, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving give effect to the increase provisions of Revolving Commitmentsthis Section 2.24. This Section 2.24 shall supersede any provision of Section 10.1 to the contrary.
(e) It shall be a condition precedent to the availability of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans that (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default (or, in the case of any Incremental Limited Condition Term Facility, no Specified Event of Default) shall have occurred and be in existence on continuing immediately prior to and immediately after giving effect to the effective date making of such increaseIncremental Term Loans, (yii) the representations and warranties made or deemed made by the Borrower and any other Loan Party set forth in any each Loan Document to which such Loan Party is a party (or, in the case of any Incremental Limited Condition Term Facility, the Specified Representations and the Specified Acquisition Agreement Representations) shall be true and correct in all material respects (except in the case of a representation or warranty or, if qualified by materiality or Material Adverse Effectmateriality, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), the Incremental Term Loan Closing Date immediately prior to and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory immediately after giving effect 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty making of such Incremental Facility; (ii) a supplement Term Loans, except to this Agreement executed by the Borrowerextent expressly made as of an earlier date, the Administrative Agent in which case they shall be so true and any Lender providing correct as of such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; earlier date and (iii) an opinion of counsel to the Borrower shall have delivered such customary legal opinions, board resolutions, secretary’s certificate, officer’s certificate and other documents, in each case consistent with those delivered on the GuarantorsClosing Date, and addressed to the Administrative Agent and the Lenders covering such matters as shall be reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating Agent in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Term Facility, any 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 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 Laws, including without limitation, the Patriot Act.
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Incremental Facilities. The (a) So long as no Default or Event of Default exists or would arise therefrom, the Borrower shall have the right (on behalf of itself, or in the case of Incremental Loans the proceeds of which will be subject to a Permitted Escrow Arrangement (but only for so long as such Incremental Loans are subject to such Permitted Escrow Arrangement), a Permitted Escrow Subsidiary (any such Permitted Escrow Subsidiary, an “Escrow Borrower”), at any time and from time to time after the Closing Date, (i) to request increases new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the aggregate amount of commitments thereunder, the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term LoansLoan Commitments” and each a “New Term Facility”), (ii) to increase the existing Term Loans by requesting new term loan commitments to be added to an existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments” and each a “New Revolving Facility”); provided that in no event shall there be more than three (3) revolving facilities outstanding under this Agreement at any such one time and (iv) to increase or the existing Revolving Credit Facility by requesting new revolving credit commitments to be added to an existing Tranche of Revolving Credit Loans (the “Supplemental Revolving Commitments” and together with the Incremental Term LoansLoan Commitments, Supplemental Term Loan Commitments and the Incremental Revolving Commitments, the “Incremental Commitments” and each an “Incremental Facility”), provided that, (i) by providing written notice the aggregate amount of Incremental Commitments permitted pursuant to this Section 2.14 shall not exceed, at the Administrative Agenttime of Incurrence or establishment of the respective Incremental Commitment becomes effective, which notice the Maximum 114 Syniverse Credit Agreement Incremental Facilities Amount or, in the case of the 2018 Refinancing on the Fifth Amendment Effective Date, an amount equal $1,702,000,000 and (ii) if the financial covenant set forth in Section 7.11 would be required to be tested on the date of Incurrence or establishment of any Incremental Commitment (in the case of any Incremental Revolving Commitments and Supplemental Revolving Commitments being initially provided onin connection with any such date of determination, as if Incurred in full on such date) if it were the last day of a fiscal quarter, the Borrower shall be irrevocable once given; provided, however, that in compliance with the financial covenant set forth in Section 7.11 on a Pro Forma Basis after giving effect to the Incurrence of any such Incremental Facility Commitments for the most recently ended four full fiscal quarters for which internal financial statements are available (or, if earlier, were required to be delivered pursuant to Section 6.02(a) or (b)) immediately preceding the date of determination on a Pro Forma Basis. 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 2.14 shall be in a minimum aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed at least $650,000,000. The allocation of any increase between the Revolving Commitments 15,000,000 and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and in integral multiples of $5,000,000 in excess thereofthereof (or such lesser amounts as the Administrative Agent may agree).
(b) Each request from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the Commitments (or any portion thereof) may be made by any existing Lenders and/or Lender or by any other banks, bank or financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with institution (any such requested increase must be bank or other financial institution, an Eligible Assignee and“Additional Lender”), provided that, if such new Additional Lender is assuming Revolving Commitmentsnot already a Lender hereunder or an Affiliate of a Lender hereunder, must such Additional Lender shall be subject to the consent of each Issuing Bank the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the Swingline Lender. If a new consent of any Swing Line Lender becomes a party or the L/C Issuer (such consent not to this Agreementbe unreasonably withheld or delayed), or as the case may be, that may be required pursuant to Section 10.07 (it being understood that any such Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 10.07(i), mutatis mutandis, to the same extent as if any existing Lender is increasing its Revolving Commitment, such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall on become commitments under this Agreement pursuant to a supplement specifying the date it becomes Term Loan Tranche or Revolving Credit Loan Tranche, as applicable, to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit K-1 (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit K-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register pursuant to which such Lender or Additional Lender agrees to commit to all or a Lender hereunder (or portion of such Incremental Facility, and in the case of an existing Additional Lender, increases its to be bound by the terms of this Agreement as a Lender. Borrower may agree to accept a lesser amount of any Incremental Facility than originally requested. In the event there are Lenders and Additional Lenders that have committed to an Incremental Facility in excess of the maximum amount requested (or permitted), then Borrower shall have the right to allocate such commitments on whatever basis Borrower determines is appropriate. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan and the Supplemental Revolving Commitment shall be an Initial Revolving Credit Commitment, an Incremental Revolving Commitment, a Specified Refinancing Revolving Commitment or Extended Revolving Commitments of a particular Extension Series, as applicable. Each Increase Supplement and/or Lender Joinder Agreement may, without the consent of any other Lender, (i) effect such amendments to any Loan Documents (including 115 Syniverse Credit Agreement
(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 Amendment”) to this Agreement and, as a condition thereto) purchase from appropriate, the other Lenders its Revolving Loan Documents, executed by the Borrower, an Escrow Borrower (if applicable) and each Additional Lender. An Incremental Commitment Percentage 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 2.14 (determined including, without limitation, with respect to the Lenders’ respective Revolving any Incremental Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made secured on a junior basis by the other Revolving Lenders under Section 2.4.(j) that have not been repaidCollateral, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payableappropriate modifications, if any, to such Revolving Lenders under Section 5.4. as a result Sections 2.05(b)(vi), 8.02 and 8.04 of this Agreement and to the Security AgreementCollateral Documents), provided, however, that (i) (A) the Incremental Commitments will not be guaranteed by any Subsidiary of the prepayment Borrower other than the Subsidiary Guarantors, and (it being understood that the primary obligation of an Escrow Borrower shall not constitute a guarantee by a Subsidiary that is not a Guarantor), and if secured (other than with respect to Permitted Escrow Funds in respect of any such Revolving Loans. Revolving Incremental Commitments that are subject to a Permitted Escrow Arrangement (but only for so long as such Incremental Commitments are subject to such Permitted Escrow Arrangement)), will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Loans made pursuant (so long as any such junior-secured Incremental Commitments (and related Obligations) are subject to any increased Revolving Commitment and anthe Intercreditor Agreement or an Other Intercreditor Agreement), (B) the Incremental Term Loans Commitments and any incremental loans drawn thereunder (ithe “Incremental Loans”) shall rank pari passu in right of payment with or (at the Revolving Borrower’s option) junior to the Loans (so long as any such Incremental Commitments (and related Obligations) are subject to the Intercreditor Agreement or an Other Intercreditor Agreement) and (C) no Incremental Commitment Amendment may provide for any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assetsLien on assets (other than with respect to Permitted Escrow Funds in respect of any such Incremental Loans that are subject to a Permitted Escrow Arrangement (but only for so long as such Incremental Loans are subject to such Permitted Escrow Arrangement)) of any Loan Party that do not also secure the Loans; (ii) no Lender will be required to provide any such Incremental Commitment unless it so agrees; (iii) (a) in the case of a New Term Facility, the maturity dateMaturity Date and the Weighted Average Life to Maturity of such Incremental Commitments shall be no earlier than or shorter than, as the case may be, the maturity dateMaturity Date or the Weighted Average Life to Maturity of the 116 Syniverse Credit Agreement Current Term Loans, as applicable (iiin each case, other than an earlier maturity date or shorter Weighted Average Life to Maturity (x) shall for customary bridge financings, which, subject to customary conditions, would either be equally and ratably secured with automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter Weighted Average Life to Maturity than the Revolving Maturity Date of the Current Term Loans and or the Weighted Average Life to Maturity of the Current Term Loans, as applicable, or (iiiy) pursuant to a Permitted Escrow Arrangement with respect to the proceeds of the Incremental Loans made pursuant to such Incremental Commitments (but only for so long as such Incremental Loans are subject to such Permitted Escrow Arrangement)), and (b) in the case of Incremental Revolving Commitments, the termination date of such Incremental Commitments shall be no earlier than the Maturity Date for the Current Revolving Credit Commitments and such Incremental Revolving Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Maturity Date with respect to the Current Revolving Credit Commitments; (iv) the currency, interest rate margins and, (subject to Section 2.14(d)(iii)(a)) amortization schedule, original issue discount (“OID”), upfront fees and interest rate floors (if any) applicable to the loans made pursuant to the Incremental Commitments shall beNew Term Facilities or New Revolving Facilities shall be determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any term loans incurred by the Borrower under any New Term Facilitiesfirst lien syndicated floating rate term loans denominated in Dollars incurred under any Incremental Term Loan Commitments or Supplemental Term Loan Commitments (x) with a Stated Maturity that is earlier than 24 months following the Maturity Date in respect of the Tranche C Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made Incurred by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respectsan Escrow Borrower) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) in an aggregate principal amount in excess of $50.0 million, are higher than the Administrative Agent applicable interest rate margin for the InitialTranche C Term Loans or the Tranche B Term Loans by more than 50 basis points, then the Applicable Rate for the Initial Term Loans and/or the Tranche B Term Loans, as applicable,effective interest rate margin for the Tranche C Term Loans at the time such Incremental Term Loan Commitments or Supplemental Term Loan Commitments become effective (the “Existing Interest Rate”) shall have received each be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans and/or the Tranche B Term Loans, as applicable,Existing Interest Rate is equal to the applicable interest rate margins for such New Term FacilitiesIncremental Term Loan Commitments or Supplemental Term Loan Commitments minus 50 basis points (the “Adjusted Interest Rate”, and the number of basis points by which the followingExisting Interest Rate is increased, the “Increased Amount”); provided, further, that, in form determining the applicable interest rate margins for the Initial Term Loans, Tranche B Term Loans and substance satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative AgentNew Term Facilities, copies certified by the Secretary or Assistant Secretary of (A) original issue discount (“Tranche C Term Loans and the Incremental Loans incurred under such Incremental Term Loan Commitments or Supplemental Term Loan Commitments, (A) OID”) or upfront fees payable generally to all corporate, partnership, member or other necessary action taken participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to authorize such ▇▇▇▇▇▇ Lenders under the Initialsuch Tranche C Term Loans, Tranche B Term Loans or any New Term Facilitiessuch Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental FacilityLoans, as applicable, in the initial primary syndication thereof shall be included (with OID and upfront fees being equated to interest rate based on an assumed four-year life to maturity) (provided that, if such Tranche C Term Loans are issued in a manner such that all such Tranche C Term Loans were not issued with a uniform amount of such Revolving Lender’s Revolving Commitment OID or aggregate upfront fees within the Tranche of Tranche C Term Loans, the amount of OID and upfront fees attributable to the entire Tranche of Tranche C Term Loans at the time of the effectiveness of the applicable Incremental Facility. In shall be determined on a weighted average basis); (B) any arrangement, structuring or other fees payable in connection with the New Term Facilitiessuch Incremental Loans that are not shared with all Additional Lenders providing such New Term Facilities shallIncremental Loans shall, in each case, be excluded; (C) any Incremental Facility, any 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 Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide amendments to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for Applicable Rate on the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, Initial Term Loans oror effective interest rate margin on the Patriot Act.Tranche BC Term 117 Syniverse Credit Agreement
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Incremental Facilities. (a) The Borrower Parent and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall have make, obtain or increase the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder their Term Loans (any such Terms Loans, “Incremental Term Loans”, and any such increase ) or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loansapplicable, by making available executing and delivering to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to Increased Facility Activation Notice specifying (Ai) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment increase and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term LoansFacility or Facilities involved, (ii) shall be equally the applicable Increased Facility Closing Date and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (xA) shall not mature earlier than the applicable Incremental Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, (B) the amortization schedule for such Incremental Term Loans, and (iv) shall be treated substantially the same (and in any event not more favorably thanC) the Applicable Margin for such Incremental Term Loans; provided, that (1) upon the effectiveness of each Incremental Term Loan or increase in Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) Commitments no Default or Event of Default has occurred and is continuing or shall be result therefrom; (2) on a Pro Forma Basis after giving effect to the incurrence of any Incremental Term Loans or increased Revolving Commitments, (assuming in existence on the effective date case of an increase in the Revolving Commitments the full drawing of such increaseincreased Revolving Commitments and, without duplication, after giving effect to (x) the borrowing of any Revolving Loans on such day under such increased Revolving Commitments, (y) other permitted pro forma adjustment events and (z) any permanent repayment of Indebtedness after the beginning of the relevant determination period but prior to or simultaneous with borrowing), the Parent is in compliance with the financial covenants in Section 7.1; (3) in the case of an incurrence of an Incremental Term Loan, the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (4) upon the effectiveness of each incurrence of any Incremental Term Loans or increase in Revolving Commitments, each of the representations and warranties made or deemed made by the Borrower and any other Loan Party in any or pursuant to the Loan Document to which such Loan Party is a party Documents shall be true and correct in all material respects (except in to the case of extent (i) any such representations and warranties relate, by their terms, to a representation or warranty qualified by materiality or Material Adverse Effectspecific date, in which case such representation or warranty representations and warranties shall be true and correct in all material respects on and as of such specific date and (ii) any such representations and warranties are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z5) the Administrative Agent shall have received each all flood hazard determination certifications, acknowledgements and evidence of the following, in form flood insurance and substance satisfactory other flood-related documentation with respect to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified real property Collateral as required by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility applicable law and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested required by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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” applicable law or the requirements of its regulators. Notwithstanding the foregoing, (i) the aggregate amount of borrowings of Incremental Term Loans and Anti-Money Laundering Lawsincremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Incremental Amount and (ii) without the consent of the Administrative Agent, including without limitationeach increase effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 or if less the balance of the remaining aggregate principal amount available. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent (which consent shall not be unreasonably withheld) of the Parent, the Patriot ActAdministrative Agent, the Issuing Lenders (in the case of a Revolving Facility only) and the Swingline Lender (in the case of a Revolving Facility only), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit G, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the Revolving Facility, the Borrowers 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 Parent and the relevant Lender).
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Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall have make, obtain or increase the right amount of their Commitments (any such new or increased Commitments, “Incremental Commitments”) by executing and delivering to request increases the Administrative Agent an Increased Facility Activation Notice specifying (x) the amount of such Incremental Commitments and (y) the applicable Increased Facility Closing Date (which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent)); provided that (i) with respect to any Increased Facility Closing Date, the Incremental Commitments shall be in a minimum amount of $10,000,000 and (ii) the aggregate amount of Incremental Commitments obtained after the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice Closing Date pursuant to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) this Section 2.24 shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders125,000,000. No Lender shall be obligated have any obligation to participate in any way whatsoever increase described in this paragraph unless it agrees to increase do so in its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loanssole discretion, and the Borrower shall have no obligation to offer to any new Lender becoming the opportunity to so participate.
(b) Any additional bank, financial institution or other entity which, with the consent of the Borrower, the Issuing Lender and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a party to “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit I-2, whereupon such requested increase must be an Eligible Assignee andbank, if such new financial institution or other entity (a “New Lender”) shall become a Lender is assuming Revolving Commitments, must be subject for all purposes and to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes 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 or otherwise directed by the Administrative Agent, or if any existing Lender is increasing its Revolving Commitmenton each Increased Facility Closing Date, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for shall (i) effect a settlement of all outstanding Revolving Loans among the account of such other Lenders, in same day funds, an amount equal Lenders that will reflect the adjustments to (A) the portion Total Commitments of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving applicable Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment Incremental Commitments and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) notify the Lenders of the occurrence of the Incremental Commitments to be effected on the Increased Facility Closing Date.
(d) It shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior a condition precedent to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting availability of any Incremental Facility under this Section is subject to the following conditions precedent: Commitments that (xi) no Default or Event of Default shall have occurred and be in existence on continuing immediately prior to and immediately after giving effect to the effective date making of such increaseIncremental Commitments, (yii) the representations and warranties made or deemed made by the Borrower and any other Loan Party set forth in any each Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty or, if qualified by materiality or Material Adverse Effectmateriality, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), the Increased Facility Closing Date immediately prior to and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory immediately after giving effect 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty making of such Incremental Facility; (ii) a supplement Commitments, except to this Agreement executed by the Borrowerextent expressly made as of an earlier date, the Administrative Agent in which case they shall be so true and any Lender providing correct as of such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; earlier date and (iii) the Borrower shall have delivered such customary legal opinions, board resolutions, secretary’s certificate, officer’s certificate and other documents, in each case consistent with those delivered 87
(e) On each Increased Facility Closing Date, the fixed dollar portions of any Availability-based thresholds hereunder shall be increased by an opinion of counsel amount proportional to the Borrower and the Guarantorsincrease, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicableif any, in the amount of Total Commitments above the Total Commitments in effect on the Closing Date effected by the Incremental Commitments on such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot ActIncreased Facility Closing Date.
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Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) may by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect Agent elect to increase the existing Revolving Credit Commitments of any Class (any such increase, the “Incremental Facility Revolving Credit Commitments”) and/or incur one or more new term loan commitments and/or increase the aggregate amount commitments of the sum of the Revolving Commitments plus the principal amount any Class of Term Loans (including any such the “Incremental Term LoansLoan Commitments”) shall by an amount not to exceed $650,000,000. The allocation of any increase between in the Revolving Commitments and Incremental Term Loans shall be made aggregate, at the time Borrower requests such increase. of incurrence, the Incremental Available Amount (and not less than $5,000,000 individually).
(b) Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase Revolving Credit Commitments or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banksLoan Commitments, financial institutions and other institutional lenders. No Lender as applicable, shall be obligated 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 any way whatsoever to increase its Revolving Commitment sole discretion); and (ii) the identity of each Lender or provide a new Revolving Commitment or Incremental Term Loansother Person, and any new Lender becoming a party to this Agreement in connection with any such requested increase which must be an Eligible Assignee and(each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loan Commitments effected through the establishment of one or more term loan commitments made on an Increased Amount Date that are not fungible for United States federal income tax purposes with an existing Class of Term Loans shall be designated a separate Class of Incremental Term Loan Commitments for all purposes of this Agreement. Notwithstanding the foregoing, any Incremental Term Loans may be treated as part of the same Class as any other Incremental Term Loans if such new Lender is assuming Revolving Commitments, must be subject to 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 consent Lenders promptly upon receipt of the Borrower’s notice of each Issuing Bank Increased Amount Date and in respect thereof (i) the Incremental Revolving Credit Commitments and the Swingline Lender. If a new Lender becomes a party to this AgreementIncremental Revolving Loan Lenders or Incremental Term Loan Commitments and the Incremental Term Loan Lenders, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder as applicable and (or ii) in the case of an existing Lendereach notice to any applicable Revolving Credit Lender of any such given Class, increases its the respective interests in such Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Credit ▇▇▇▇▇▇’s Revolving Commitment Percentage (determined with respect Credit Loans of such Class, in each case subject to the Lenders’ respective assignments contemplated by this Section.
(d) Such Incremental Revolving Credit Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and or Incremental Term Loan Commitments shall become effective as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans Increased Amount Date; provided that:
(i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans(x) subject, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) solely in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have to Section 1.09(c), no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or 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 existence on the effective date of such increase, Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders; and (y) the representations and warranties made or deemed made by of the Borrower and any each other Loan Party contained in any Loan Document to which such Loan Party is a party Article 5 hereof shall be true and correct in all material respects (except in the case of a that any representation or and warranty that is qualified by materiality or as to “materiality,” “Material Adverse Effect, in which case such representation ” or warranty similar language shall be true and correct in all respects(after giving effect to any qualification therein) on the effective date and as of such increase date, except in each case to the extent that such representations and warranties expressly relate solely specifically refer to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effectdate, in which case such representation or warranty they shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following; provided that, in form and substance satisfactory the case of Incremental Term Loans incurred to finance an Investment in the Administrative Agent: nature of an acquisition, this clause (ii)(y) if not previously delivered to may be waived or limited as agreed in the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders to authorize such Incremental Facility 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 (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; 5.20;
(ii) a supplement the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to this Agreement one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent Incremental Revolving Loan Lender(s) or Incremental Term Loan Lender(s), as applicable, and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate 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 implement such Incremental Facility contemplated by this the requirements set forth in Section 2.17., together with the consent of the Guarantors thereto; 3.01);
(iii) an opinion the Incremental Facilities shall be Guaranteed by the Guarantors (and, for the avoidance of counsel to the Borrower and doubt, no Person other than the Guarantors), rank pari passu in right of security with the other Facilities and addressed 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 covering (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 matters as other documents reasonably requested by the Administrative Agent; Agent in connection with any such transaction.
(e) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Credit Lenders of the Class being so increased shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the existing Revolving Credit Lenders of the Class being so increased, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans of the Class being so increased and participations in Letters of Credit outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans and participations in Letters of Credit will be held by existing Revolving Credit Lenders of such Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of the Class being so increased after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments of such Class, (ii) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment of the Class being so increased and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan of the Class being so increased and (iviii) new 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 replacement Revolving Notes 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 Notes executed by 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, payable 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 participating in under any then-existing Facilities, (ii) the Weighted Average Life to Maturity of all Incremental Term Loans of any such Incremental FacilityClass shall be no shorter than (x) if there are no Term Loans outstanding at such time, as applicable36 months and (y) if there are Term Loans outstanding at such time, in the amount Weighted Average Life to Maturity of such Revolving Lender’s Revolving Commitment or aggregate any other Term Loans at the time of the effectiveness incurrence of such Incremental Term Loans, (iii) the applicable Incremental Facility. In connection with any 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 FacilityTerm Loans, any Lender becoming a party hereto shall (1iv) execute 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 documents and agreements as the Administrative Agent may reasonably request Class and (2v) 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 Lender that is organized under mandatory prepayments of Term Loans hereunder, as specified in the laws applicable Joinder Agreement, and in the case of Incremental Revolving Credit Commitments, such Incremental Revolving Credit Commitments may participate on a jurisdiction outside 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 United States Incremental Revolving Loans and Incremental Revolving Credit Commitments shall be identical to the other Revolving Credit Loans of Americathe 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, provide 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 Credit Commitments in excess of the commitment fee then applicable to the Revolving Credit Facility of the Class being so increased, the commitment fee on the Revolving Credit Facility of such Class shall be increased to equal such commitment fee without further consent of the affected Lenders.
(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, its name, address, tax identification number and/or 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 information as Term Loans, which shall be necessary for include any amendments that modify the Administrative Agent aggregate principal amount of scheduled installment payments to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Actextent 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.
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Incremental Facilities. (a) The Opco Borrower shall have may at any time or from time to time on and after the right Closing Date, by notice to the Administrative Agent, request one or more additional tranches of term loans (which may take the form of an increase in the principal amount of any existing tranche of Term Loans) (the “Incremental Term Loans”) or increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (each such increase a “Incremental Term LoansRevolving Commitment”, and any such increase or ; Incremental Term Loans, an Loans and Incremental Revolving Commitments are collectively referred to herein as the “Incremental FacilityFacilities”) by providing written notice to the Administrative Agentso long as, which notice shall be irrevocable once given; provided, however, that after upon giving effect to any such Incremental Facility thereto, the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any all such Incremental Term Loans) shall Facilities does not exceed $650,000,000(I) other than during an Investment Grade Period, the Incremental Cap or (II) during an Investment Grade Period, an unlimited
(b) No Subsidiary shall be a borrower or a guarantor under any Incremental Facility unless such Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or been a borrower with respect to, as applicable, the Obligations. Each Incremental Revolving Commitment shall be on terms and pursuant to documentation applicable to the existing Revolving Commitments. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) if made as an increase in the principal amount of any existing tranche of Term Loans, shall have terms identical to those applicable to such Term Loans, (ii) shall rank pari passu in right of payment with the Revolving existing Term Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and shall be secured on a pari passu basis with the Liens securing the existing Term Loans and the Revolving Loans, (iii) in the case of Incremental Term Loans, shall not (x) shall not mature earlier than the Term Loans and Latest Maturity Date, (y) shall have a Weighted Average Life that is no amortization shorter than the Weighted Average Life of the existing Term Loans or any previously incurred Incremental Term Loan or (z) share more than ratably in any mandatory prepayments of existing Term Loans (or otherwise provide for more favorable (from the perspective of the Borrowers) prepayment treatment than the then outstanding Term Loans); provided that the requirements under this clause (iii) shall not apply to customary bridge Debt (including 364-day bridge facilities) incurred by the Opco Borrower, so long as (A)(1) at the initial maturity of any such bridge Debt, such bridge Debt shall automatically convert to (or would be permitted required to be prepaid prior exchanged for) Debt that complies with clause (iii) above or (2) such bridge Debt is incurred with the intent to the Term Loan Maturity Dateconvert such bridge Debt to permanent financing that complies with clause (iii) above, and (B) the only prepayments required to be made on such bridge Debt shall be such prepayments as are customary (including with respect to priority thereof) for similar bridge financings in light of then-prevailing market conditions (as determined by the Administrative Agent and the Opco Borrower), (iv) except as set forth above, shall be treated substantially the same (as reasonably determined by the Opco Borrower and the Administrative Agent) as (and in any event not event, no more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default Term Loans or Event of Default shall otherwise be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance terms 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (Bv) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.will
Appears in 1 contract
Sources: Credit Agreement (Atmus Filtration Technologies Inc.)
Incremental Facilities. The (a) At any time on or after the Funding Date, the Borrower Representative shall have the right to request increases in the aggregate amount of the Revolving aggregate Tranche A-1 Commitments or the making of incremental term loans hereunder (“Incremental Term LoansTranche A-1 Increase”), to request increases in the amount of the aggregate Tranche A-2 Commitments (“Incremental Tranche A-2 Increase”) or to add one or more new pari passu term loan tranches (“Incremental TL Tranches”, and any such increase or together with each Incremental Term LoansTranche A-1 Increase and Incremental Tranche A-2 Increase, an the “Incremental FacilityFacilities”) (or any combination of the foregoing) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) Facilities shall not exceed $650,000,000. The allocation of any increase between 400,000,000 in the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increaseaggregate. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 1,000,000 in excess thereofthereof and, with respect to any Incremental Tranche A-1 Increase or Incremental Tranche A-2 Increase, shall identify the applicable Tranche(s) to be increased. The ArrangersLead Arranger, in consultation with the BorrowerBorrower Representative, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof Facilities among such existing Lenders and/or other banks, financial institutions and other institutional lenders. Notwithstanding the foregoing, participation in all or any portion of such Incremental Facility may be offered by the Lead Arranger to any existing Lender in the applicable Tranche selected by the Borrower Representative or to any other bank, financial institution or other institutional lender selected by the Borrower Representative, subject to the approval of the Administrative Agent, in each case to the extent set forth in clause (v) of subsection (f) below. No Lender shall be obligated in any way whatsoever to increase any of its Revolving Commitment Commitments or to provide a new Revolving Commitment or any other Incremental Term LoansFacility, as applicable, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee, and any such Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline shall become a Lender. .
(b) If a new Lender becomes a party to this Agreement as a Tranche A-1 Lender pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (a “New Lender Joinder Agreement”), or if any existing Tranche A-1 Lender is increasing its Revolving Tranche A-1 Commitment, such Lender shall on the date it becomes a Tranche A-1 Lender hereunder (or or, in the case of an existing Tranche A-1 Lender, increases its Revolving Commitment) Tranche A-1 Commitment (and as a condition thereto) purchase from the other Tranche A-1 Lenders its Revolving Tranche A-1 Commitment Percentage (determined with respect to the Tranche A-1 Lenders’ respective Revolving Tranche A-1 Commitments and after giving effect to the increase of Revolving Tranche A-1 Commitments) of any outstanding Revolving Tranche A-1 Loans, by making available to the Administrative Agent for the account of such other Tranche A-1 Lenders, in same day immediately available funds, an amount equal to the sum of (A) the portion of the outstanding principal amount Outstanding Amount of such Revolving Tranche A-1 Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount Outstanding Amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.Tranche A-1
Appears in 1 contract
Sources: Delayed Draw Term Loan Agreement (Park Hotels & Resorts Inc.)
Incremental Facilities. The Borrower shall have the right to request (and to have effected to the extent of available and willing Eligible Assignees) increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000600,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made by the Borrower at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The ArrangersArranger, in consultation with the Borrower (subject to the Borrower’s right, pursuant to the other provisions of this section, to the Revolving Commitments increase(s) which is the subject hereof), shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline LenderLender (which consent shall not be unreasonably withheld or delayed). If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all 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 (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement Agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 1 contract
Incremental Facilities. The Borrower shall have (a) At the right option of Borrowers (but subject to request increases the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate amount for all such increases of the Revolving Revolver Commitments or and the making of incremental term loans hereunder Maximum Revolver Amount not to exceed the Available Revolver Increase Amount (“Incremental Term Loans”, and any each such increase or Incremental Term Loansincrease, an “Incremental FacilityIncrease”) by providing written notice ). Agent shall invite each Lender to the Administrative Agent, which notice increase its Revolver Commitments (it being understood that no Lender shall be irrevocable once given; providedobligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, howeverand if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, that after giving effect then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to any such Incremental Facility the aggregate Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed at least $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 5,000,000 and integral multiples of $5,000,000 in excess thereof. The ArrangersIn no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than three occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in consultation with no event shall the Borrower, shall manage all aspects aggregate amount of the syndication of such Incremental Facilities, including decisions as Increases to the selection Revolver Commitments exceed $50,000,000.
(b) Each of the existing Lenders and/or other banks, financial institutions and other institutional lenders following shall be conditions precedent to be approached with respect to such increase or Incremental Term Loans any Increase of the Revolver Commitments and the allocations thereof among Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such existing Lenders and/or other banks(or prospective lenders), financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party 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 such requested increase must be an Eligible Assignee andIncrease, 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 new Lender is assuming Revolving Commitmentsother documentation as Agent shall reasonably request, must be subject in order to the consent of each Issuing Bank enable Agent and the Swingline Lender. If a new Lender becomes a party Lenders to this Agreementcomply with any of the requirements under Regulations T, U or if any existing Lender is increasing its Revolving Commitment, such Lender shall on X of the date it becomes a Lender hereunder Federal Reserve Board,
(or in the case of an existing Lender, increases its Revolving Commitmentiv) Borrowers have delivered to Agent updated pro forma Projections (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of Revolving Commitmentsthe applicable Increase, and
(v) of any outstanding Revolving Loans, by making available The interest rate margins with respect to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) made pursuant to the aggregate amount of payments previously made by increased Revolver Commitments shall be the other same as the interest rate margin applicable to Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid Loans hereunder immediately prior to and as of such the date on such portion of the outstanding principal effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount (the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount, the “Increase Date”) and shall have communicated the amount of such Revolving Loansinterest margins to Agent. The Borrower shall pay 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 Documents as may be necessary to effectuate the provisions of this Section 2.14.
(c) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Lenders amounts payableLoans shall be deemed, if anyunless the context otherwise requires, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. include Revolving Loans made pursuant to any the increased Revolving Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14.
(d) Each of the Lenders having a Revolver Commitment and prior to the Incremental Term Loans Increase Date (ithe “Pre-Increase Revolver Lenders”) shall rank pari passu assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) participation interests in the case Letters of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence Credit on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Increase Date as shall be necessary for 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 Administrative 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 comply with “know your customer” ensure and Anti-Money Laundering Laws, including without limitation, demonstrate that the Patriot ActLiens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
Appears in 1 contract
Sources: Credit Agreement (INFINERA Corp)
Incremental Facilities. The Borrower shall have the right at any time to request (i) increases in the aggregate amount of the Revolving Commitments (a “Revolving Commitment Increase”), (ii) increases in the aggregate amount of any Class of Term Loans (a “Term Loan Increase”) or the making (iii) additional tranches of incremental term loans hereunder (an “Incremental Term Loans”Loan” and together with a Revolving Commitment Increase and a Term Loan Increase, and any such increase or Incremental Term Loans, each an “Incremental Facility”) ), in each case to be established under this Agreement, by providing written notice thereof to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate principal amount of the sum of the Revolving Commitments plus the principal amount of and Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase3,900,000,000. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 10,000,000 and integral multiples of $5,000,000 in excess thereofthereof (or, in each case, in such lesser amounts as may be acceptable to the Administrative Agent and the Borrower). The ArrangersAdministrative Agent, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental FacilitiesFacility so as to achieve a syndication of such Incremental Facility reasonably satisfactory to the Administrative Agent and the Borrower, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders lenders, in each case that would constitute an Eligible Assignee, to be approached with respect to any such increase or Incremental Term Loans Facility and the allocations thereof of any Incremental Facility among such existing Lenders and/or other banks, financial institutions and other institutional lenders, in each case, as reasonably agreed to by the Administrative Agent and the Borrower. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment participate in any Incremental Facility or provide a new increased Revolving Commitment Commitments or Incremental Term LoansLoans hereunder, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline LenderAssignee. If a new Revolving Lender becomes a party to this Agreement, or if any existing Revolving Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Revolving Lender hereunder (or in the case of an existing Revolving Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Revolving Lenders its Revolving Commitment Percentage (determined with respect to the Revolving Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving CommitmentsCommitment Increase) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Revolving Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j2.4(j) and Section 2.5(e) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. 5.4 as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and , unless such amount is waived by the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loansapplicable Lender. Effecting any Incremental Facility under this Section is subject to the following conditions precedent:
(a) any Revolving Commitment Increase shall be on the same terms (other than arrangement, upfront or similar fees, which shall be determined by the Borrower and the lenders providing such Revolving Commitment Increase) as the existing Revolving Commitments in effect on the effective date of such Revolving Commitment Increase;
(b) any Term Loan Increase shall be on the same terms (other than arrangement, upfront or similar fees, including any original issue discount, which shall be determined by the Borrower and the lenders providing such Term Loan Increase) as the existing Term Loans of the applicable Class in effect on the effective date of such Term Loan Increase;
(c) with respect to any Incremental Term Loan: (xi) such Incremental Term Loan shall not mature earlier than the latest maturity date of the then-existing Classes of Term Loans and Revolving Commitments without the written consent of the Requisite Class Lenders of each earlier maturing Class, and the weighted average life to maturity of any Incremental Term Loan shall be no shorter than that of the then-existing Classes of Term Loans without the written consent of the Requisite Class Lenders of each shorter lived Class of then-existing Term Loans, (ii) the interest rate margins, fees (including any original issue discount), and, subject to clause (i), the maturity and amortization applicable to such Incremental Term Loan will be determined by the Borrower and the lenders providing such Incremental Term Loan and (iii) except as otherwise required or permitted in clauses (i) and (ii) above, all other terms of such Incremental Term Loan shall be as agreed by the Borrower and the lenders providing such Incremental Term Loan and, taken as a whole, shall not be materially more restrictive than the terms set forth in this Agreement (except for terms applicable only after the latest Termination Date in effect at the time of incurrence of such Incremental Term Loan);
(d) such Incremental Facility shall (i) be established under this Agreement, (ii) rank pari passu in right of payment with the existing Revolving Commitments and Term Loans, (iii) be unsecured and (iv) not have any obligors other than the Loan Parties;
(e) no Default or Event of Default shall be in existence on the effective date of such increase, Incremental Facility;
(yf) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effectmateriality, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase Incremental Facility 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effectmateriality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), ) and except for changes in factual circumstances specifically and expressly permitted hereunder or waived or consented to by the Requisite Lenders in accordance with the provisions of Section 13.6; and
(zg) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member corporate or other necessary action taken by the Borrower to authorize such Incremental Facility increase and (B) all corporate, partnership, member corporate or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facilityincrease; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters with respect to the Incremental Facility as reasonably requested by the Administrative Agent; and (iviii) except in the case of a Lender that has requested not to receive Notes, new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any such new Lenders participating in and replacement Notes executed by the Borrower, payable to any such Incremental Facilityexisting Lenders increasing their respective Revolving Commitments or Term Loans, as applicable, in each case, in the amount of such Revolving Lender▇▇▇▇▇▇’s Revolving Commitment or aggregate Term Loans Loans, as applicable, at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental FacilityFacility pursuant to this Section 2.17, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request including amendments or joinders to this Agreement (each, an “Incremental Amendment”) and (2) in the case of any 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 Antianti-Money Laundering Lawsmoney laundering rules and regulations, including without limitation, the Patriot ActAct and the Beneficial Ownership Regulation.
Appears in 1 contract
Sources: Credit Agreement (Store Capital LLC)
Incremental Facilities. The Borrower shall have (a) At any time during the right period from and after the Closing Date, at the option of Borrowers (but subject to request increases the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate amount for all such increases of the Revolving Revolver Commitments or and the making of incremental term loans hereunder Maximum Revolver Amount not to exceed the Available Increase Amount (“Incremental Term Loans”, and any each such increase or Incremental Term Loansincrease, an “Incremental FacilityIncrease”). Agent (at the direction of the Borrowers) by providing written notice shall invite one or more Lenders to the Administrative Agent, which notice increase its Revolver Commitments (it being understood that no Lender shall be irrevocable once given; providedobligated to increase its Revolver Commitments) or any prospective Lender who, howeverunless such prospective Lender is an Affiliate of an existing Lender, that after giving effect is reasonably satisfactory to any such Incremental Facility the aggregate Agent in its Permitted Discretion and Borrowers, to become a Lender in connection with a proposed Increase. Any Increase pursuant to this Section 2.14 shall be in an amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed at least $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 10,000,000 and integral multiples of $5,000,000 in excess thereofthereof (or such lesser amount as is required to use the remaining amount of possible increases pursuant to this Section 2.14). The Arrangers, in consultation with In no event may the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans Revolver Commitments and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall Maximum Revolver Amount be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party increased pursuant to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall Section 2.14 on the date it becomes a Lender hereunder (or more than four occasions in the case of an existing Lenderaggregate for all such Increases. Additionally, increases its Revolving Commitment) (it is understood and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, agreed that in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) no event shall the aggregate amount of payments previously made by the other Revolving Lenders under Increases to the Revolver Commitments after the SecondThird Amendment ClosingIncrease Date pursuant to this Section 2.4.(j2.14 exceed $400,000,000.
(b) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion Each of the outstanding principal amount of such Revolving Loans. The Borrower following shall pay be conditions precedent to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result any Increase of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment Revolver Commitments and the Incremental Term Loans Maximum Revolver Amount in connection therewith (i) shall rank pari passu Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) in right of payment accordance with the Revolving Loans above clause (a) to provide the applicable Increase and Term Loansany such Lenders (or prospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Increase Joinder”), in form and substance reasonably satisfactory to Agent in its Permitted Discretion, to which such Lenders (or prospective lenders), Borrowers, and Agent are party and (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall have occurred and be in existence continuing on the effective date of such increaseIncrease, (y) nor shall either result from the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which effectiveness of such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) Increase on the effective date of such increase except Increase,
(c) The interest rate margins with respect to the extent that such representations and warranties expressly relate solely Revolving Loans to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in be made pursuant to the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty increased Revolver Commitments shall be true and correct in all respects) on and the same as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory interest rate margin applicable to Revolving Loans hereunder immediately prior 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time date of the effectiveness of the applicable Incremental Facilityincreased Revolver Commitments (the “Increase Date”)). In connection 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 Documents as may be necessary to effectuate the provisions of this Section 2.14.
(d) Unless otherwise specifically provided herein, all references in this Agreement and any Incremental Facilityother 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.
(e) Each of the Lenders having a Revolver Commitment prior to the Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender becoming which is acquiring a party hereto new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post‑Increase Revolver Lenders shall (1) execute purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such documents and agreements as the Administrative Agent may reasonably request and (2) interests in the case Revolving Loans and participation interests in Letters of any 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 Credit on such other information Increase Date as shall be necessary for in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments.
(f) The Revolving Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the Administrative 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 comply ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
(g) As of the effective date of any increase in the Revolver Commitments and the Maximum Revolver Amount occurring after the SecondThird Amendment ClosingIncrease Date, each reference to the term “Availability” herein, and in any other Loan Document shall be deemed amended so that (A) the ratio of the Availability and the Maximum Revolver Amount as so increased remains the same as prior to such increase, and (B) the reference to dollar amounts in the definition of Borrowing Base (as such amounts may be adjusted from time to time in accordance with “know your customer” and Anti-Money Laundering Laws, including without limitation, this Section 2.14(g)) shall be adjusted to bear the Patriot Actsame relationship to the Maximum Revolver Amount as increased as each had borne to the Maximum Revolver Amount prior to such increase.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.)
Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) may by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect Agent elect to increase the existing Revolving Credit Commitments of any Class (any such increase, the “Incremental Facility Revolving Credit Commitments”) and/or incur one or more new term loan commitments and/or increase the aggregate amount commitments of the sum of the Revolving Commitments plus the principal amount any Class of Term Loans (including any such the “Incremental Term LoansLoan Commitments”) shall by an amount not to exceed $650,000,000. The allocation of any increase between in the Revolving Commitments and Incremental Term Loans shall be made aggregate, at the time Borrower requests such increase. of incurrence, the Incremental Available Amount (and not less than $5,000,000 individually).
(b) Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase Revolving Credit Commitments or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banksLoan Commitments, financial institutions and other institutional lenders. No Lender as applicable, shall be obligated 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 any way whatsoever to increase its Revolving Commitment sole discretion); and (ii) the identity of each Lender or provide a new Revolving Commitment or Incremental Term Loansother Person, and any new Lender becoming a party to this Agreement in connection with any such requested increase which must be an Eligible Assignee and(each, an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations. Any Lender approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment or Incremental Term Loan Commitment. Any Incremental Term Loan Commitments effected through the establishment of one or more term loan commitments made on an Increased Amount Date that are not fungible for United States federal income tax purposes with an existing Class of Term Loans shall be designated a separate Class of Incremental Term Loan Commitments for all purposes of this Agreement. Notwithstanding the foregoing, any Incremental Term Loans may be treated as part of the same Class as any other Incremental Term Loans if such new Lender is assuming Revolving Commitments, must be subject to 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 consent Lenders promptly upon receipt of the Borrower’s notice of each Issuing Bank Increased Amount Date and in respect thereof (i) the Incremental Revolving Credit Commitments and the Swingline Lender. If a new Lender becomes a party to this AgreementIncremental Revolving Loan Lenders or Incremental Term Loan Commitments and the Incremental Term Loan Lenders, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder as applicable and (or ii) in the case of an existing 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, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect in each case subject to the Lenders’ respective assignments contemplated by this Section.
(d) Such Incremental Revolving Credit Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and or Incremental Term Loan Commitments shall become effective as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans Increased Amount Date; provided that:
(i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans(x) subject, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) solely in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have to Section 1.09(c), no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or 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 existence on the effective date of such increase, Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders; and (y) the representations and warranties made or deemed made by of the Borrower and any each other Loan Party contained in any Loan Document to which such Loan Party is a party Article 5 hereof shall be true and correct in all material respects (except in the case of a that any representation or and warranty that is qualified by materiality or as to “materiality,” “Material Adverse Effect, in which case such representation ” or warranty similar language shall be true and correct in all respects(after giving effect to any qualification therein) on the effective date and as of such increase date, except in each case to the extent that such representations and warranties expressly relate solely specifically refer to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effectdate, in which case such representation or warranty they shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following; provided that, in form and substance satisfactory the case of Incremental Term Loans incurred to finance an Investment in the Administrative Agent: nature of an acquisition, this clause (ii)(y) if not previously delivered to may be waived or limited as agreed in the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by Joinder Agreement between the Borrower and the applicable Incremental Term Loan Lenders to authorize such Incremental Facility 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 (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; 5.20;
(ii) a supplement the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to this Agreement one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent Incremental Revolving Loan Lender(s) or Incremental Term Loan Lender(s), as applicable, and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate 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 implement such Incremental Facility contemplated by this the requirements set forth in Section 2.17., together with the consent of the Guarantors thereto; 3.01);
(iii) an opinion the Incremental Facilities shall be Guaranteed by the Guarantors (and, for the avoidance of counsel to the Borrower and doubt, no Person other than the Guarantors), rank pari passu in right of security with the other Facilities and addressed 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 covering (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 matters as other documents reasonably requested by the Administrative Agent; Agent in connection with any such transaction.
(e) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Credit Lenders of the Class being so increased shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of the existing Revolving Credit Lenders of the Class being so increased, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans of the Class being so increased and participations in Letters of Credit outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans and participations in Letters of Credit will be held by existing Revolving Credit Lenders of such Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments of the Class being so increased after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments of such Class, (ii) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment of the Class being so increased and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan of the Class being so increased and (iviii) new 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 replacement Revolving Notes 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 Notes executed by 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, payable 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 participating in under any then-existing Facilities, (ii) the Weighted Average Life to Maturity of all Incremental Term Loans of any such Incremental FacilityClass shall be no shorter than (x) if there are no Term Loans outstanding at such time, as applicable36 months and (y) if there are Term Loans outstanding at such time, in the amount Weighted Average Life to Maturity of such Revolving Lender’s Revolving Commitment or aggregate any other Term Loans at the time of the effectiveness incurrence of such Incremental Term Loans, (iii) the applicable Incremental Facility. In connection with any 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 FacilityTerm Loans, any Lender becoming a party hereto shall (1iv) execute 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 documents and agreements as the Administrative Agent may reasonably request Class and (2v) 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 Lender that is organized under mandatory prepayments of Term Loans hereunder, as specified in the laws applicable Joinder Agreement, and in the case of Incremental Revolving Credit Commitments, such Incremental Revolving Credit Commitments may participate on a jurisdiction outside 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 United States Incremental Revolving Loans and Incremental Revolving Credit Commitments shall be identical to the other Revolving Credit Loans of Americathe 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, provide 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 Credit Commitments in excess of the commitment fee then applicable to the Revolving Credit Facility of the Class being so increased, the commitment fee on the Revolving Credit Facility of such Class shall be increased to equal such commitment fee without further consent of the affected Lenders.
(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, its name, address, tax identification number and/or 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 information as Term Loans, which shall be necessary for include any amendments that modify the Administrative Agent aggregate principal amount of scheduled installment payments to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Actextent 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 1 contract
Incremental Facilities. The Borrower (a) At any time during the period from and after the Closing Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). Agent shall have 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 right interest margin proposed by ▇▇▇▇▇▇▇▇▇, and if sufficient Lenders do not agree to request increases increase their Revolver Commitments in connection with such proposed Increase, then Agent (with Borrowers’ consent) or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than 5 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 Revolving Increases to the Revolver Commitments exceed $50,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount:
(i) Agent or Borrowers have obtained the making commitment of incremental term loans hereunder one or more Lenders (“Incremental Term Loans”, or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such increase Lenders (or Incremental Term Loansprospective lenders), an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party 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 such requested increase must be an Eligible Assignee andIncrease, 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 new Lender is assuming Revolving Commitmentsother documentation as Agent shall reasonably request, must be subject in order to the consent of each Issuing Bank enable Agent and the Swingline Lender. If a new Lender becomes a party Lenders to this Agreementcomply with any of the requirements under Regulations T, U or if any existing Lender is increasing its Revolving Commitment, such Lender shall on X of the date it becomes a Lender hereunder Federal Reserve Board,
(or in the case of an existing Lender, increases its Revolving Commitmentiv) Borrowers have delivered to Agent updated pro forma Projections (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of Revolving Commitmentsthe applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period), and
(v) of any outstanding Revolving Loans, by making available The interest rate margins with respect to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by 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 the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount (such Lenderdate, plus (B) the aggregate amount “Increase Date”). Any Increase Joinder may, with the consent of payments previously made by Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.14.
(c) [Reserved.]
(d) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Lenders under Section 2.4.(j) that have not been repaidLoans shall be deemed, plus (C) interest accrued and unpaid to and as of such date on such portion of unless the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if anycontext otherwise requires, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. include Revolving Loans made pursuant to any the increased Revolving Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14.
(e) Each of the Lenders having a Revolver Commitment and prior to the Incremental Term Loans Increase Date (ithe “Pre-Increase Revolver Lenders”) shall rank pari passu assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) participation interests in the case Letters of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence Credit on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Increase Date as shall be necessary for in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments.
(f) The Revolving Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the Administrative 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 comply with “know your customer” ensure and Anti-Money Laundering Laws, including without limitation, demonstrate that the Patriot ActLiens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
Appears in 1 contract
Incremental Facilities. The (a) Each applicable Borrower shall have may, at any time, on one or more occasions on or after the right Closing Date pursuant to request increases an Incremental Amendment (i) add one or more new Classes of term facilities (each new Class, a “New Incremental Term Facility”) (including term facilities in the aggregate form of delayed draw term facilities (each delayed draw term facility, an “Incremental Delayed Draw Facility”)) and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (each increase, an “Incremental Term Increase Facility”; any such New Incremental Term Facility or Incremental Term Increase Facility, an “Incremental Term Facility” and the loans made pursuant to any Incremental Term Facility, “Incremental Term Loans”) and/or (ii) (x) if no Revolving Loans or Revolving Commitments exist at such time, add a new Class of revolving facility (each new Class, a “New Incremental Revolving Facility”) or (y) increase the principal amount of the Revolving Commitments of any existing Class by requesting new commitments of such Class (each increase, a “Revolving Commitment Increase”; any such New Incremental Revolving Facility or the making of incremental term loans hereunder (Revolving Commitment Increase, an “Incremental Term Revolving Facility”; and the loans thereunder, “Incremental Revolving Loans”, ” and any such increase or Incremental Revolving Loans, together with any Incremental Term Loans, an “Incremental FacilityLoans”) in an aggregate principal amount not to exceed the Incremental Cap; provided that:
(i) no Incremental Facility may be in an amount that is less than $1,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(ii) except as any applicable Borrower and any Lender may separately agree in writing, no Lender shall be obligated to provide any Incremental Commitment or Incremental Loan, and the determination to provide any Incremental Commitment or Incremental Loan shall be within the sole and absolute discretion of such Lender,
(iii) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(iv) except as otherwise permitted herein (including as provided in clauses (v), (vi) and (ix) below, as applicable), (x) the terms of any Incremental Term Facility shall be consistent with the terms of any existing Class of Term Loans or otherwise no more restrictive to any applicable Borrower in any material respect (taken as a whole and as reasonably determined by providing written notice the U.S. Borrower) than the terms of any existing Class of Term Loans and reasonably acceptable to the Administrative AgentAgent (excluding (A) covenants or other provisions applicable only to periods after the Latest Maturity Date applicable to any existing Class of Term Loans and (B) any more restrictive covenant, which notice to the extent that such covenant is also added for the benefit of any outstanding Loans and Revolving Commitments (provided that, with respect to the Term Loans, any new or more restrictive financial covenant in respect of any Incremental Revolving Facility or Incremental Term A Loans shall only be required to be added for the benefit of any outstanding Initial Tranche A Term Loans and any outstanding Incremental Term A Loans); it being understood and agreed that in each such case, no consent of the Administrative Agent and/or any Lender shall be irrevocable once given; providedrequired in connection with adding such covenant, however, that after giving effect to and it may be added by the applicable Borrower or Borrowers and the lenders providing the relevant Incremental Term Facility) and (y) the terms and provisions of any such New Incremental Revolving Facility shall be consistent with the aggregate amount terms of the sum Initial Tranche A Term Loans or any Class of the Revolving Commitments plus the principal amount Incremental Term A Loans, in each case then outstanding, or if no such Loans are then outstanding, any existing Class of Term Loans (in each case, taking into account the nature of the Incremental Revolving Loans as revolving loans) or otherwise no more restrictive to any applicable Borrower in any material respect (taken as a whole and as reasonably determined by the U.S. Borrower) than the terms of the Initial Tranche A Term Loans or any Class of Incremental Term A Loans, in each case then outstanding, or if no such Loans are outstanding, any existing Class of Term Loans (taking into account the nature of the Incremental Revolving Loans as revolving loans) and reasonably acceptable to the Administrative Agent (excluding (A) covenants or other provisions applicable only to periods after the Latest Maturity Date applicable to any existing Class of Term Loans and (B) any more restrictive covenant, to the extent that such covenant is also added for the benefit of the outstanding Term Loans (provided that any new or more restrictive financial covenant shall only be required to be added for the benefit of any outstanding Initial Tranche A Term Loans and any outstanding Incremental Term A Loans); it being understood and agreed that in each such case, no consent of the Administrative Agent and/or any Lender shall be required in connection with adding such covenant, and it may be added by the applicable Borrower or Borrowers and the lenders providing the relevant Incremental Revolving Facility),
(v) the Effective Yield (and the components thereof, including the interest rate margins, rate floors, fees, premiums and funding discounts), currency types and denominations and any “MFN terms” or prepayment premiums or protections applicable to any Incremental Facility shall be determined by the applicable Borrower or Borrowers and the lender or lenders providing such Incremental Facility; provided that, in the case of any Dollar-denominated Incremental Term Facility (other than any Incremental Term Loans in the form of customary term “A” loans (an “Incremental Term A Loan”) or customary bridge financing), the Effective Yield applicable to such Incremental Term Loans shall not be greater than the applicable Effective Yield with respect to the Initial Tranche B Term Loans plus 50 basis points per annum unless the Effective Yield with respect to the Initial Tranche B Term Loans is increased so as to cause the then applicable Effective Yield of the Initial Tranche B Term Loans to equal the Effective Yield then applicable to such Incremental Term Loans minus 50 basis points; provided, further, that any increase in the Effective Yield of any Initial Tranche B Term Loan required solely due to the application or imposition of a Term SOFR Rate or Alternate Base Rate floor on any Incremental Term Loan may, at the election of the U.S. Borrower, be effected solely through an increase in (or implementation of, as applicable) any Term SOFR Rate, Daily Simple SOFR or Alternate Base Rate floor applicable to such Initial Tranche B Term Loan or an increase in the interest rate margin applicable to such Incremental Term Loans; provided, further, that this Section 2.20(a)(v) shall not exceed $650,000,000. The allocation apply to any Incremental Commitments or Incremental Term Loans incurred on or after the six-month anniversary of the Closing Date,
(vi) the maturity date of any increase between Incremental Facility shall be determined by the Revolving Commitments applicable Borrower or Borrowers and the lender or lenders providing such Incremental Facility; provided that, except with respect to (x) customary bridge financings that, subject to customary conditions (as determined by the U.S. Borrower in good faith), provide for an automatic extension of the maturity date thereof to a date that satisfies this clause (vi) or require such bridge loans to be converted into or exchanged for permanent financing with a maturity date that would satisfy this clause (vi) or (y) any Incremental Term A Loan, which shall have a final maturity date no earlier than the Latest Maturity Date applicable to the Initial Tranche A Term Loans, the final maturity date with respect to any Class of Incremental Term Loans shall be made at no earlier than the time Latest Maturity Date,
(vii) subject to clause (viii) below, (A) the 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 mandatory prepayments of Initial Tranche A Term Loans hereunder and (B) the 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 mandatory prepayments of Initial Tranche B Term Loans hereunder,
(viii) subject to clause (a)(vi) above, any amortization schedule applicable to any Incremental Term Facility shall be determined by the applicable Borrower requests such increase. Each or Borrowers and the lender or lenders providing such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with but shall have a Weighted Average Life to Maturity not shorter than the Borrower, shall manage all aspects remaining Weighted Average Life to Maturity of the syndication of such latest maturing Term Loans (other than a shorter Weighted Average Life to Maturity for (i) customary bridge financings or (ii) any Incremental FacilitiesTerm A Loan, including decisions as which shall have a Weighted Average Life to Maturity no earlier than the selection Weighted Average Life to Maturity of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Initial Tranche A Term Loans),
(ix) subject to clause (a)(v) above, and any new Lender becoming a party to this Agreement fees payable in connection with any such requested increase must Incremental Facility shall be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to determined by the consent of each Issuing Bank applicable Borrower or Borrowers and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, arrangers and/or lenders providing such Lender shall on the date it becomes a Lender hereunder Incremental Facility,
(or in the case of an existing Lender, increases its Revolving Commitmentx) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) each Incremental Facility shall be secured by Liens ranking pari passu with the portion of Liens securing the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus Obligations and (B) no Incremental Facility may be (1) guaranteed by any Person which is not a Loan Party or (2) secured by any assets other than the aggregate amount of payments previously made by the other Revolving Lenders under Collateral,
(xi) subject to Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans1.08, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (xA) no Default or Event of Default shall exist immediately prior to or after giving effect to such Incremental Facility, (B) if any Initial Tranche A Term Loans are outstanding at such time, the TopCo Borrower shall be in existence compliance (on a pro forma basis and, in the effective date case of any Incremental Revolving Facility or Incremental Delayed Draw Facility, assuming a full drawing of such increaseIncremental Revolving Facility or Incremental Delayed Draw Facility, as applicable (yprovided that in lieu of assuming any such Incremental Delayed Draw Facility is fully drawn at the time committed, the U.S. Borrower may, in its sole discretion, elect to test compliance as of the date each delayed draw term loan under such Incremental Delayed Draw Facility is funded)) with the Financial Covenants as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b) and (C) the representations and warranties made or deemed made by of the Borrower Loan Parties set forth in this Agreement and any the other Loan Party in any Loan Document to which such Loan Party is a party Documents shall be true and correct in all material respects (except in the case of a representation or warranty if qualified by materiality or Material Adverse Effect, in which case all respects) on and as of the date such Incremental Facility becomes effective, with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or warranty period, it shall be true and correct in all respectsmaterial respects as of such date or for such period,
(xii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by this Agreement,
(xiii) (A) any Incremental Term Increase Facility shall be on the same terms (including maturity date and interest rates (except, if required to consummate such Incremental Term Increase Facility, any increase in interest rates and/or rate floors that is provided to all Lenders for the applicable Class of Term Loans, but excluding upfront fees, original issue discount or similar fees)) and pursuant to the same documentation (other than the relevant Incremental Amendment) applicable to such Class of Term Loans, and (B) any Revolving Commitment Increase (x) shall be on the same terms (including maturity date and interest rates (except, if required to consummate such Revolving Commitment Increase, any increase in interest rates, rate floors and/or undrawn fees that is provided to all Lenders for the applicable Class of Revolving Commitments), but excluding upfront fees, original issue discount or similar fees) and pursuant to the same documentation (other than the relevant Incremental Facility agreement) applicable to such Class of Revolving Commitments and (y) shall not require any scheduled amortization or mandatory commitment reduction prior to the Maturity Date with respect to such Class of Revolving Commitments, 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 Section 2.13, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the U.S. 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 Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having an Interest Period (the duration of which may be less than one month) that begins during an Interest Period then applicable to outstanding Term Benchmark Loans of the relevant Class and which ends on the last day of such Interest Period,
(b) Incremental Commitments may be provided by any existing Lender, or by any other Person (any such other lender being called an “Incremental Lender”); provided that the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Incremental Lender’s provision of Incremental Commitments if such consent would be required under Section 9.04 for an assignment of Loans to such Incremental Lender, mutatis mutandis, to the same extent as if the relevant Incremental Commitments and related Obligations had been acquired by such Incremental Lender by way of assignment.
(c) Each Incremental Lender providing a portion of any Incremental Commitments shall execute and deliver to the Administrative Agent and each applicable Borrower all such documentation (including the relevant Incremental Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such increase except Incremental Commitments, each Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(d) As conditions precedent to the extent that effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such representations reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender, an Administrative Questionnaire and warranties expressly relate solely to an earlier date such other documents as it shall reasonably require from such Incremental Lender, (in which case such representations and warranties iii) the Administrative Agent, on behalf of the Incremental Lenders, shall have been true and correct received the amount of any fees payable to the Incremental Lenders in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as respect of such earlier date)Incremental Facility or Incremental Loans, and (ziv) subject to Section 1.08, the Administrative Agent shall have received each a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of the following, in form and substance satisfactory which is reasonably acceptable to the Administrative Agent: Agent (i) if it being understood and agreed that the requirement to deliver a Borrowing Request shall not previously delivered result in the imposition of any additional condition precedent to the Administrative Agent, copies certified by availability of the Secretary or Assistant Secretary of (Arelevant Incremental Loans) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (Bv) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrowerupon its request, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments shall be entitled to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated receive (A) a certificate signed by this Section 2.17., together with the consent a Financial Officer of the Guarantors thereto; (iii) an opinion of counsel to the applicable Borrower and the Guarantorsor Borrowers and, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably if requested by the Administrative Agent; , the Loan Parties, certifying and (iv) new or replacement Revolving Notes or Term Notes executed attaching a copy of the resolutions adopted by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.governing body o
Appears in 1 contract
Sources: Credit Agreement (Alkermes Plc.)
Incremental Facilities. The Borrower shall have (a) Any Incremental Commitments effected through the right to request increases in the aggregate amount establishment of the one or more new tranches of Revolving Commitments or new Term Loans made on an Increased Amount Date shall be designated a separate Class of Incremental Commitments for all purposes of this Agreement. On any Increased Amount Date on which any New Term Loan Commitments of any Class are effected (including through any Term Loan Increase), subject to the making satisfaction of incremental term loans the terms and conditions in this Section 2.24, (i) each New Term Loan Lender of such Class shall make a Loan to Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Class and (ii) each New Term Loan Lender of such Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto. On any Increased Amount Date on which New Revolving Loan Commitments of any Class are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Commitment Increase), subject to the satisfaction of the terms and conditions in this Section 2.24, (i) each New Revolving Loan Lender of such Class shall make its Commitment available to Borrower (when borrowed, a “Incremental New Revolving Loan” and collectively with any New Term Loans”, and any such increase or Incremental Term LoansLoan, an “Incremental FacilityLoan”) by providing written notice in an amount equal to its New Revolving Loan Commitment of such Class and (ii) each New Revolving Loan Lender of such Class shall become a Lender hereunder with respect to the Administrative AgentNew Revolving Loan Commitment of such Class and the New Revolving Loans of such Class made pursuant thereto.
(b) Notwithstanding the foregoing, which notice no Incremental Commitments shall be irrevocable once given; providedeffective, howeverand no Incremental Loans shall be made, that unless, on the applicable Increased Amount Date, (1) no Event of Default shall exist before or after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder as applicable; (or in the case of an existing Lender, increases its Revolving Commitment2) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments both before and after giving effect to the increase of Revolving Commitments) making of any outstanding Revolving Class of New Term Loans, by making available each of the conditions set forth in Section 3.2 shall be satisfied; and (3) to the extent secured on a pari passu basis with the Obligations, (i) the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effected pursuant to one or more Incremental Amendment executed and delivered by Borrower, the New Revolving Loan Lender or New Term Loan Lender, as applicable, and Administrative Agent, and each of which shall be recorded in the Register and each New Revolving Loan Lender and New Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c) (ii) Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the New Revolving Loan Commitments or New Term Loan Commitments, as applicable and (iii) Borrower shall deliver or cause to be delivered any legal opinions, modifications of Mortgages, endorsements to any Title Policy or a new Title Policy with respect to any Real Estate Asset subject to a Mortgage, and other customary documents reasonably requested by Administrative Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate Class of New Term Loans for all purposes of this Agreement.
(c) On any Increased Amount Date on which New Revolving Loan Commitments are effected, subject to the account satisfaction of such other the foregoing terms and conditions, (a) each of the Revolving Loan Lenders shall assign to each of the New Revolving Loan Lenders, in same day funds, an amount equal to (A) the portion and each of the outstanding New Revolving Loan Lenders shall purchase from each of the Revolving Loan Lenders, at the principal amount of 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 Loan Commitments to the Revolving Commitments, (b) each New Revolving Loan Commitment shall be purchased by such Lenderdeemed for all purposes a Revolving Commitment and each New Revolving Loan shall be deemed, plus for all purposes, a Revolving Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Loan Commitment and all matters relating thereto.
(d) Administrative Agent shall notify Lenders promptly upon receipt of Borrower’s notice of each Increased Amount Date and, in respect thereof, (i)(A) the New Revolving Loan Commitments and the New Revolving Loan Lenders, (B) the aggregate amount new Class of payments previously made by New Revolving Loan Commitments and the other New Revolving Loan Lenders under Section 2.4.(j) that have not been repaidof such Class, plus (C) interest accrued the New Term Loan Commitments and unpaid to the New Term Loan Lenders and/or (D) the new Class of Term Loan Commitments and as the New Term Loan Lenders of such date on Class, as applicable, and (ii) with respect to New Revolving Loan Commitments that increase an existing class of Revolving Loan Commitment, notice to each Revolving Lender of such portion Class or the respective interests in such Revolving Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.24.
(e) The terms, provisions and documentation of the outstanding principal amount New Term Loans and New Term Loan Commitments or the New Revolving Loans and New Revolving Loan Commitments, as the case may be, of any Class shall be as agreed between Borrower and the applicable New Term Loan Lenders or New Revolving Loan Lenders providing such Revolving Loans. The Borrower shall pay Incremental Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Lenders amounts payableCommitments, if anyas applicable, each existing on the Increased Amount Date, shall be reasonably satisfactory to such Administrative Agent (it being understood that to the extent any financial maintenance covenant is added for the benefit of any New Term Loans and New Term Loan Commitments or the New Revolving Lenders under Section 5.4. as a result Loans and New Revolving Loan Commitments, no consent shall be required from Administrative Agent or any of the prepayment Lenders to the extent that such financial maintenance covenant (x) is also added for the benefit of any such Revolving Loans. Revolving the Term Loans made pursuant to any increased Revolving Commitment and on the Incremental Closing Date or (y) is only applicable after the Maturity Date of the Term Loans made on the Closing Date). In any event:
(i) the New Term Loans:
(1) (x) shall as determined by Borrower (A) rank pari passu or junior with the then-existing Term Loans in right of payment and (B) be unsecured or secured by the Collateral on either a pari passu or junior basis with the Revolving then-existing Term Loans (and Term Loansto the extent subordinated in right of payment or security, documented as a separate facility in a separate agreement (iiand not in an Incremental Amendment) and subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent) and (y) if secured, shall not be equally secured by any asset other than the Collateral and ratably secured with in any event shall not be guaranteed by any Person other than the Revolving Loans and Term Loans, Guarantors;
(iii) in the case of Incremental Term Loans, (x2) shall not mature earlier than the Latest Maturity Date of any Term Loans outstanding at the time of incurrence of such New Term Loans;
(3) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then-existing Term Loans,
(4) to the extent secured on a pari passu basis with the then-existing Term Loans, shall have a Weighted Average Yield not 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 Term Loans made on the Closing Date plus 0.50% per annum unless the interest rate with respect to the Term Loans is increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Term Loans made on the Closing Date to equal the Weighted Average Yield then applicable to the New Term Loans minus 0.50% per annum;
(5) shall have an applicable margin, and subject to clauses (f)(i)(2) through (f)(i)(4) above, amortization determined by Borrower and the applicable New Term Loan Lenders; and
(6) the New 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 Term Loans hereunder, to the extent specified in the applicable Incremental Amendment.
(ii) the New Revolving Loan Commitments and New Revolving Loans shall be identical to the Revolving Commitments and the Revolving Loans, other than the Maturity Date and as set forth in this Section 2.24(f)(ii); provided that notwithstanding anything to the contrary in this Section 2.24 or otherwise:
(1) any such New Revolving Loan Commitments or New Revolving Loans (x) shall as determined by Borrower (A) rank pari passu or junior with the then-existing Revolving Loans and Term Loans in right of payment and (B) be unsecured or secured by the Collateral on either a pari passu or junior basis with the then-existing Revolving Loans and Term Loans (and to the extent subordinated in right of payment or security, documented as a separate facility in a separate agreement (and not in an Incremental Amendment) and subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent and (y) shall have no amortization or otherwise not, if secured, be permitted to be prepaid prior to secured by any asset other than the Term Loan Maturity Date, and (iv) shall be treated substantially the same (Collateral and in any event shall not more favorably thanbe guaranteed by any Person other than the Guarantors.
(2) any such New Revolving Loan Commitments or New Revolving Loans shall not mature earlier than the Latest Maturity Date of any Revolving Loans outstanding at the time of incurrence of such New Revolving Loan Commitments;
(3) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: borrowing and repayment (except for (x) no Default or Event payments of Default shall be in existence interest and fees at different rates on the effective date of such increaseNew Revolving Loan Commitments (and related outstandings), (y) repayments required upon the representations maturity date of the New Revolving Loan Commitments and warranties (z) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (5) below)) of Loans with respect to New Revolving Loan Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date;
(4) subject to the provisions of Sections 2.3(d) and 2.4(i) to the extent dealing with Swing Line Loans and Letters of Credit that mature or deemed expire after a maturity date when there exist New Revolving Loan Commitments with a longer maturity date, all Swing Line Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Sections 2.3(d) and 2.4(i), without giving effect to changes thereto on an earlier maturity date with respect to Swing Line Loans and Letters of Credit theretofore incurred or issued);
(A) the permanent repayment of Revolving Loans with respect to, and termination of, New Revolving Loan Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that Borrower shall be permitted to permanently repay and terminate Commitments of any such Class on a better than pro rata basis as compared to any other Class with a later maturity date than such Class;
(B) assignments and participations of New Revolving Loan Commitments and New Revolving Loans shall be governed by the Borrower same assignment and any other Loan Party in any Loan Document participation provisions applicable to which such Loan Party is a party shall be true Revolving Commitments and correct in all material respects Revolving Loans on the Increased Amount Date;
(except C) in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the BorrowerRevolving Commitment Increase, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount Maturity Date of such Revolving Lender’s Commitment Increase shall be the same as the Maturity Date of the existing Revolving Commitments, such Revolving Commitment Increase shall require no scheduled amortization or aggregate Term Loans mandatory commitment reduction prior to the Maturity Date of the existing Revolving Commitments at the time of incurrence of such Revolving Commitment Increase, and such Revolving Commitment Increase shall be effected as an increase in Commitments under the effectiveness existing Revolving Commitments and on the exact same terms and pursuant to the exact same documentation applicable to the existing Revolving Commitments (it being understood that, if required to consummate a Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn fees on the existing Revolving Commitments may be increased, but additional upfront or similar fees may be payable to the lenders providing the Revolving Commitment Increase without any requirement to pay such amounts to the existing Revolving Lenders); and
(5) any New Revolving Loan Commitments may constitute a separate Class or Classes, as the case may be, of Commitments from the Classes constituting the applicable Incremental Facility. In connection with any Incremental Facility, any 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 Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide Revolving Commitments prior 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 Laws, including without limitation, the Patriot ActIncreased Amount Date.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (American Casino & Entertainment Properties LLC)
Incremental Facilities. (a) The Parent Borrower may by written notice to the Administrative Agent and the Lenders (as set forth below) elect to request the establishment of one or more additional tranches of term loans (the commitments thereto, the “Incremental Term Loan Commitments”), by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Required Lenders or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such Incremental Term Loan Commitments obtained on or prior to such date). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Parent Borrower proposes that the Incremental Term Loan Commitments shall be effective, the Borrowers to which such New Loan Commitments will be available and the currency in which such New Loan Commitments will be borrowed. The Borrowers may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the Incremental Term Loan Commitments; provided that each existing Lender shall have the right of first refusal to request increases provide the Incremental Term Loan Commitments on a pro rata basis (but each such existing Lender will not have an obligation to provide any Incremental Term Loan Commitment). To the extent any existing Lenders decline to participate or fail to respond to such an offer to participate within ten (10) Business Days of written notice thereof, the Borrowers shall be entitled to seek Incremental Term Loan Commitments from any other any Person (other than a natural Person) (any such other Person, an “Additional Lender”; each such existing Lender or Additional Lender providing an Incremental Term Loan Commitment, an “Incremental Term Loan Lender”). In each case, such Incremental Term Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Term Loan Commitments, as applicable, (ii) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Parent Borrower and Administrative Agent, and each of which shall be recorded in the aggregate amount Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the New Loan Commitments, as applicable. No Lender shall have any obligation to provide any commitments pursuant to this Section 2.14(a). Any Incremental Term Loans made on an Increased Amount Date shall, at the election of the Revolving Parent Borrower and agreed to by Lenders providing such Incremental Term Loan Commitments, be designated as (a) a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement.
(b) On any Increased Amount Date on which any Incremental Term Loan Commitments or of any Series are effective, subject to the making satisfaction of incremental term loans hereunder the foregoing terms and conditions, (i) each Incremental Term Loan Lender of any Series shall make a Loan to the Borrowers, as specified in the applicable Notice of Borrowing (the “Incremental Term Loans”) in an amount equal to its Incremental Term Loan Commitment of such Series, and any such increase or (ii) each Incremental Term Loans, an “Incremental Facility”) by providing written notice Loan Lender of any Series shall become a Lender hereunder with respect to the Administrative AgentIncremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. Notwithstanding the foregoing, which notice the Incremental Term Loans shall have identical terms (except as otherwise specified in clause (c) below) to the existing Term Loans.
(c) Except as otherwise expressly specified below in this clause (c), the terms, provisions and documentation of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be irrevocable once given; provided, however, that after giving effect identical to any such Incremental Facility the aggregate amount those of the sum of existing Term Loans. In any event, (i) the Revolving Commitments plus the principal amount of Term Loans (including any such applicable Incremental Term LoansLoan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) shall not exceed $650,000,000. The allocation the weighted average life to maturity of any increase between the Revolving Commitments and all Incremental Term Loans shall be made at no shorter than the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects weighted average life to maturity of the syndication then existing Initial Term Loans (calculated without giving effect to prepayments of the Term Loans), (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and amortization schedule applicable to any Incremental Term Loans shall be determined by the Borrower(s) and the Lenders thereunder; provided that in the case of Incremental Term Loans incurred other than in connection with preparation for or in anticipation of a Qualifying IPO, if the Effective Yield for Eurocurrency Loans in respect of such Incremental FacilitiesTerm Loans exceeds the Effective Yield for Eurocurrency Loans in respect of the then existing Initial Term Loans by more than 0.50%, including decisions as the Applicable Margin for Eurocurrency Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the selection Effective Yield for Eurocurrency Loans in respect of the existing Lenders and/or other banksIncremental Term Loans minus 0.50% (provided, financial institutions and other institutional lenders that to be approached the extent such increase in Effective Yield is the result of a higher Eurocurrency floor with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement the increase in connection with any Effective Yield for the existing Initial Term Loans shall take the form of an increase in the Eurocurrency floor for such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject Initial Term Loans to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion extent of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus Effective Yield differential); (Biv) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (iA) shall rank pari passu in right of payment and of security with the Revolving Loans and existing Term Loans, (B) shall not at any time be guaranteed by any Person other than the Credit Parties, with the primary obligors thereunder being the Borrowers and (C) shall not be secured by a Lien on any property or asset that does not constitute Collateral; (v) the 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 except with respect to Declined Proceeds) in any mandatory prepayments of existing Term Loans hereunder, as specified in the Joinder Agreement and (vi) the Incremental Term Loans may participate on a pro rata basis or less than a pro rata basis in any voluntary prepayment of the existing Term Loans hereunder, but not on a greater than pro rata basis.
(d) 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 opinion of the Parent Borrower (as certified in writing by the Parent Borrower to the Administrative Agent), to effect the provision of this Section 2.14 (including, without limitation, (i) to increase the Applicable Margin in respect of the applicable Term Loans pursuant to Section 2.14(c)(iii) or in order to match the Applicable Margin to any Incremental Term Loans in lieu thereof if such modification results in a greater increase or (ii) shall be equally and ratably secured with to extend the Revolving Loans and period during which the requirements of Section 5.1(b) are applicable in order to conform such time period to any similar requirements of the Incremental Term Loans, ) or (iii) in subject to Section 13.1(a)(i), to modify the case scheduled amortization payments of applicable Term Loans to conform such payments to those of the Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and but in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, less than otherwise payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving applicable Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Senior Secured Term Loan Credit Agreement (Skillsoft Corp.)
Incremental Facilities. The (a) On one or more occasions at any time after the Closing Date, the Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) may by providing written notice to the Administrative AgentAgent elect to request the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), in an aggregate amount not to exceed $1,125,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Term Loan Commitments shall be effective, which notice shall be irrevocable once givena 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 willing to hold the requested Incremental Term Loan Commitments; provided, however, provided that after giving effect to (x) any such Incremental Facility Term Loan Commitments on any Increased Amount Date shall be in the minimum aggregate amount of the sum $10,000,000, (y) any Lender approached to provide all or a portion of the Revolving Incremental Term Loan Commitments plus may elect or decline, in its sole discretion, to provide an Incremental Term Loan Commitment, and (z) any Lender or other Person that is an Eligible Assignee to whom any portion of such Incremental Term Loan Commitment shall be allocated (each, an “Incremental Term Loan Lender”) shall be subject to the principal amount approval of the Borrower and the Administrative Agent (each of which approvals shall not be unreasonably withheld), unless such Incremental Term Loan Lender is an existing Lender.
(b) The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term Loans shall provide that (including a) the maturity date of any Incremental Term Loan that is a separate tranche shall be no earlier than the Maturity Date and shall not have any scheduled amortization payments prior to such date, (b) the Incremental Term Loans shall share ratably in any prepayments of the existing Loans, unless the Borrower and the Incremental Term Loan Lenders in respect of such Incremental Term Loans elect lesser payments and (c) except as otherwise provided in Section 2.04(f), the Incremental Term Loans shall otherwise be identical to the existing Loans.
(c) The effectiveness of any Incremental Term Loan Commitments and the availability of any borrowings under any such Incremental Term Loans) Loan Commitment shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent satisfaction of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) after giving pro forma effect to such Incremental Term Loan Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall be exist and (ii) as of the last day of the most recent period for which financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, the Borrower would have been in existence on compliance with the effective date of Financial Covenants that are applicable at such increase, time; (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase Incremental Term Loan 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), ) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member corporate or other necessary action taken by the Borrower to authorize such Incremental Facility Term Loan Commitments and (B) all corporate, partnership, member member, or other necessary action taken by each Subsidiary Guarantor authorizing the guaranty Subsidiary Guaranty by such Subsidiary Guarantor of such Incremental FacilityTerm Loan Commitments; and (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an customary opinion of counsel to the Borrower and the GuarantorsSubsidiary Guarantors (which may be in substantially the same form as delivered on the Closing Date), and addressed to the Administrative Agent and the Lenders covering such matters as reasonably Lenders, and (iii) if requested by any Lender, new notes executed by the Administrative Agent; Borrower payable to any new Lender, and replacement notes executed by the Borrower payable to any existing Lenders.
(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 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 (ivii) new 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) The Administrative Agent shall notify the Lenders promptly upon receipt of a Borrower’s notice of each Increased Amount Date and in respect thereof the Incremental Term Loan Commitments and the Incremental Term Loan Lenders.
(f) The upfront fees payable to the Incremental Term Loan Lenders shall be determined by the Borrower and the applicable Incremental Term Loan Lenders.
(g) The Incremental Term Loan Commitments shall be effected pursuant to one or replacement Revolving Notes or Term Notes more Additional Credit Extension Amendments executed and delivered by the Borrower, payable to any Lenders participating in such the Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Loan 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 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 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 for or appropriate, in the opinion of the Administrative Agent Agent, to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, effect the Patriot Actprovisions of this Section 2.04.
Appears in 1 contract
Incremental Facilities. (a) At any time from and after the Amendment No. 6 Effective Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolving Facility Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolving Facility Commitments not to exceed the Available Increase Amount (each such increase, an “Increase”). The Borrower Borrowers shall have invite each Lender to increase its Revolving Facility Commitments (it being understood that no Lender shall be obligated to increase its Revolving Facility Commitments), and if any Lenders do not agree to increase their Revolving Facility Commitments in connection with such proposed Increase, then Borrowers 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 $30,000,000 and integral multiples of $10,000,000 in excess thereof. In no event may the right Revolving Facility Commitments and the Maximum Revolver Amount be increased pursuant to request increases this Section 2.21 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 Revolving Facility Commitments exceed $100,000,000.
(b) Each of the following shall be conditions precedent to any Increase: (i) Administrative Agent or Borrowers have obtained the making commitment of incremental term loans hereunder one or more Lenders (“Incremental Term Loans”, or other prospective lenders) reasonably satisfactory to Administrative Agent and Borrowers to provide the applicable Increase and any such increase Lenders (or Incremental Term Loansprospective lenders), Borrowers, and Administrative Agent have signed a joinder agreement to this Agreement (an “Incremental FacilityIncrease Joinder”) by providing written notice ), in form and substance reasonably satisfactory to the Administrative Agent, to which notice such Lenders (or prospective lenders), Borrowers, and Administrative Agent are party, (ii) each of the conditions precedent set forth in Section 5.01(b) and (c) are satisfied, (iii) the interest rate margins with respect to the Revolving Facility Loans to be made pursuant to the increased Revolving Facility Commitments shall be irrevocable once given; the same as the interest rate margin applicable to Revolving Facility Loans hereunder immediately prior to the applicable Increase Date (as defined below) (the date of the effectiveness of the increased Revolving Facility Commitments and the Maximum Revolver Amount, the “Increase Date”), provided, howeverthat nothing in this Section 2.21 shall prohibit the payment of commitment fees or other fees to Lenders participating in an Increase, that and (iv) Administrative Agent and Lenders shall have received mortgage amendments, title policy endorsements, flood certifications, legal opinions and such other documents as Administrative Agent may reasonable request in connection with any Mortgage.[Reserved].
(c) Any Increase Joinder may, with the consent of Administrative Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.21. 100 (d) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Facility Loans shall be deemed, unless the context otherwise requires, to include Revolving Facility Loans made pursuant to the increased Revolving Facility Commitments and Maximum Revolver Amount pursuant to this Section 2.21. (e) Each of the Lenders having a Revolving Facility Commitment prior to the Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolving Facility Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Facility Loans and participation interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to any all such Incremental assignments and purchases, such Revolving Facility the aggregate amount Loans and participation interests in Letters of the sum of the 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 Revolving Commitments plus the principal amount of Term Loans Facility Commitments.
(including any such Incremental Term f) The Revolving Facility Loans) , Revolving Facility Commitments, and Maximum Revolver Amount established pursuant to this Section 2.21 shall not exceed $650,000,000. The allocation of any increase between the constitute Revolving Commitments Facility Loans, Revolving Facility Commitments, and Incremental Term Loans Maximum Revolver Amount under, and shall be made at entitled to all the time Borrower requests such increasebenefits 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. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 Borrowers shall take any actions reasonably required by Administrative Agent to ensure and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with demonstrate that the Borrower, shall manage all aspects of Liens and security interests granted by the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders Loan Documents continue to be approached with respect to such increase perfected under the Code or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and otherwise after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment establishment of any such new Revolving LoansFacility Commitments and Maximum Revolver Amount. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term LoansARTICLE III TAXES, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this YIELD PROTECTION AND ILLEGALITY Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.3.01
Appears in 1 contract
Sources: Credit Agreement (Constellium Se)
Incremental Facilities. The Borrower shall have (a) At any time during the right period from and after the Closing Date through but excluding the date that is the three year anniversary of the Closing Date, at the option of Borrowers (but subject to request increases the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate amount for all such increases of the Revolving Revolver Commitments or and the making of incremental term loans hereunder Maximum Revolver Amount not to exceed the Available Increase Amount (“Incremental Term Loans”, and any each such increase or Incremental Term Loansincrease, an “Incremental FacilityIncrease”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given); provided, howeverthat in no event shall the Revolver Commitments and the Maximum Revolver Amount be increased by an amount in excess of the Available Increase Amount. Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by ▇▇▇▇▇▇▇▇▇, that after giving effect 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 such Incremental Facility the aggregate 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 the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed at least $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 5,000,000 and integral multiples of $5,000,000 in excess thereof. The ArrangersIn no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 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 consultation with no event shall the Borrower, shall manage all aspects aggregate amount of the syndication of such Incremental Facilities, including decisions as Increases to the selection Revolver Commitments exceed $15,000,000.
(b) Each of the existing Lenders and/or other banks, financial institutions and other institutional lenders following shall be conditions precedent to be approached with respect to such increase or Incremental Term Loans any Increase of the Revolver Commitments and the allocations thereof among Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such existing Lenders and/or other banks(or prospective lenders), financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party 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) Agent has obtained the written consent to such Increase from Term Loan Agent and Agent,
(iii) If the FILO Term Loan has not been prepaid in full pursuant to Section 2.4(d)(ii) any prospective new lender, not already party thereto, has signed a joinder agreement to the Agreement Among Lenders,[reserved],
(iv) each of the conditions precedent set forth in Section 3.2 are satisfied,
(v) in connection with any such requested increase must be an Eligible Assignee andIncrease, 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 new Lender is assuming Revolving Commitmentsother documentation as Agent shall reasonably request, must be subject in order to the consent of each Issuing Bank enable Agent and the Swingline Lender. If a new Lender becomes a party Lenders to this Agreementcomply with any of the requirements under Regulations T, U or if any existing Lender is increasing its Revolving Commitment, such Lender shall on X of the date it becomes a Lender hereunder Board of Governors,
(or in the case of an existing Lender, increases its Revolving Commitmentvi) Borrowers have delivered to Agent updated pro forma Projections (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase 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 Revolving Commitmentsthe applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period),
(vii) of any outstanding Revolving Loans, by making available The interest rate margins with respect to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by made pursuant to the increased Revolver Commitments shall be the same as the interest rate margin applicable to Revolving Loans hereunder immediately prior to the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount (the “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 Lender, plus (B) the aggregate amount of payments previously made by amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.14, and
(c) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Lenders under Section 2.4.(j) that have not been repaidLoans shall be deemed, plus (C) interest accrued and unpaid to and as of such date on such portion of unless the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if anycontext otherwise requires, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. include Revolving Loans made pursuant to any the increased Revolving Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14.
(d) Each of the Lenders having a Revolver Commitment and prior to the Incremental Term Loans Increase Date (ithe “Pre-Increase Revolver Lenders”) shall rank pari passu assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) participation interests in the case Letters of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence Credit on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Increase Date as shall be necessary for 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 Administrative 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 comply with “know your customer” ensure and Anti-Money Laundering Laws, including without limitation, demonstrate that the Patriot ActLiens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
Appears in 1 contract
Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”may, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative AgentAgent on one occasion, request Incremental Revolving Loan Commitments in an amount not to exceed $15,000,000 in the aggregate from one or more Incremental Revolving Lenders, each of which must be (i) an existing Lender, (ii) any Affiliate or Approved Fund of any existing Lender or (iii) any other Person acceptable to the Agent (which acceptance shall not unreasonably withheld or delayed), the Borrower and the Issuer. Such notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility set forth (i) the aggregate amount of the sum of Incremental Revolving Loan Commitments being requested (which shall be a minimum amount $10,000,000), and (ii) the Revolving Commitments plus the principal amount of Term Loans (including any date on which such Incremental Term Loans) Revolving Loan Commitments are requested to become effective (which shall not exceed $650,000,000be less than 10 Business Days nor more than 30 days after the date of such notice). The allocation Borrower will first seek Incremental Revolving Loan Commitments from existing Lenders (each of any increase between the Revolving Commitments and Incremental Term Loans which shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 entitled to agree or decline to participate in excess thereof. The Arrangersits sole discretion) and, in consultation with the Borrowerif additional commitments are needed, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other from additional banks, financial institutions and other institutional lenders who will become Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Revolving Lender shall execute and deliver to the Agent an Incremental Revolving Loan Assumption Agreement and such other documentation as the Agent shall reasonably specify to evidence the Incremental Revolving Loan Commitment of each such Person. The terms and provisions of such Incremental Revolving Credit Commitments and Revolving Loans made under such Incremental Revolving Credit Commitments shall be approached with respect identical to such increase or those of the existing Revolving Loans.
(b) The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Revolving Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Revolving Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Credit Commitment and Incremental Revolving Loans evidenced thereby, and the allocations thereof among such existing Lenders and/or other banks, financial institutions Agent and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to the Borrower may revise this Agreement in connection with any to evidence such requested increase must be an Eligible Assignee andamendments.
(c) Notwithstanding the foregoing, if such new Lender is assuming no Incremental Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to Credit Commitment shall become effective under this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall Section 2.9 unless (i) on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenderseffectiveness, the conditions set forth in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that 5.2 have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment satisfied and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each a certificate to that effect dated such date and executed by an Authorized Officer of the followingBorrower, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the BorrowerAgent shall have received legal opinions, the Administrative Agent board resolutions and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as other closing certificates reasonably requested by the Administrative Agent; Agent and consistent with those delivered on the Closing Date under Section 5.1.
(ivd) new or replacement Revolving Notes or Term Notes executed by Each of the parties hereto hereby agrees that the Agent may, in consultation with the Borrower, payable take any and all action as may be reasonably necessary to any Lenders participating in such Incremental Facilityensure that, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of upon the effectiveness of the applicable each Incremental Facility. In connection with any Revolving Loan Commitment, (i) Revolving Loans made under such Incremental Facility, any Lender becoming Revolving Credit Commitment are included in each Borrowing of outstanding Revolving Loans on a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request pro rata basis and (2ii) the Lender providing each Incremental Revolving Credit Commitment shares ratably in accordance with its Percentage in the case aggregate Revolving Loans, Swing Loans and Letter of any 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 Laws, including without limitation, the Patriot ActCredit Outstandings then outstanding.
Appears in 1 contract
Incremental Facilities. The (i) For the avoidance of doubt and notwithstanding any provision to the contrary set forth in this Agreement or any other Loan Document, this Agreement may be amended (or amended and restated) at any time and from time to time to increase the Aggregate Revolving Commitments or to establish one or more separate tranches of term loans (each such increase to the Revolving Commitments and/or establishment of a new tranche term loans being referred to herein as an "Incremental Facility," and all of such increases and establishments being referred to collectively as the "Incremental Facilities") to be made to the Borrower by an agreement in writing entered into by the Borrower, the Administrative Agent and each Person (including any Lender) that shall have the right agree to request increases in the aggregate amount of provide any such increase to the Revolving Commitments or the making such separate tranches of incremental term loans hereunder (“Incremental Term Loans”but without the consent of any other Lender), and any each such increase or Incremental Term LoansPerson that shall not already be a Lender shall, an “Incremental Facility”) by providing written notice to at the Administrative Agenttime such agreement becomes effective, which notice shall be irrevocable once givenbecome a Lender with the same effect as if it had originally been a Lender under this Agreement with the Revolving Commitment and/or term loan set forth in such agreement; provided, however, that after giving effect to any such Incremental Facility that: (A) without the consent of the Required Lenders, the aggregate principal amount of the sum of increases in the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loansand/or separate term loans effected pursuant to this Section 11.01(b) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus 500,000,000; (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans exist at the time of the effectiveness amendment giving effect to any such increase in the Revolving Commitments and/or the making of a separate term loan, as applicable, becomes effective; and (C) no Lender shall be obligated to participate in any such increase by increasing its own commitment hereunder unless such Lender elects to do so in its sole discretion at the time of such increase. The terms applicable to any additional Revolving Commitments or term loans shall be the same as those applicable to the initial Revolving Commitments (after giving effect to any amendment in connection with the establishment of such additional Revolving Commitments or term loans), except in respect of pricing, amortization and maturity; provided, however, that (A) each such Incremental Facility structured as a separate term loan tranche may be provided the right to ratable (with each other Incremental Facility structured as a separate term loan tranche) prepayment in connection with any voluntary or mandatory prepayment, (B) no more than 20% of the initial principal amount of any Incremental Facility structured as a separate term loan tranche shall amortize (pursuant to schedule amortization) prior to the Maturity Date, and (C) the final maturity date of any Incremental Facility structured as a separate term loan tranche shall not occur prior to the Maturity Date or the final maturity date of any other then existing Incremental Facility structured as a separate term loan tranche.
(ii) Any such amendment (or amendment and restatement) effected pursuant to Section 11.01(b)(i) shall amend the provisions of this Agreement and the other Loan Documents to set forth the terms of each Incremental Facility established thereby (including the amount and the final maturity thereof, any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof (in each case subject to any applicable restrictions set forth in subsection (i) of this Section 11.01(b)) and to effect such other changes (including changes to the provisions of Section 11.01(a), Section 2.05 and the definition of "Required Lenders") as the Borrower and the Administrative Agent shall deem necessary or advisable in connection with the establishment of any such Incremental Facility; provided, however, that no such agreement shall: (A) effect any change described in any of clauses (A), (B), (C), (F) and (G) of Section 11.01(a) without the consent of each Person required to consent to such change under such clause (it being agreed, however, that any increase in the Aggregate Revolving Commitments or establishment of any Incremental Facility consisting of a separate tranche of term loans will not, of itself, be deemed to effect any of the changes described in clauses (A), (B), (C), (F) and (G) of Section 11.01(a)(i), and that modifications to Section 2.12, Section 9.03 or the definition of "Required Lenders" or other provisions relating to voting provisions to provide the Persons providing the applicable Incremental FacilityFacility with the benefit of such provisions will not, by themselves, be deemed to effect any of the changes described in clauses (D) and (E) of Section 11.01(a)(i)), or (B) amend Article VII, VIII or IX in any manner that by its terms benefits one or more tranches, but not all tranches, of Loans or Commitments without the prior written consent of Lenders holding a majority in interest of the Revolving Commitments then existing, if the Lenders holding Revolving Commitments are not so benefited, and of Lenders holding a majority in interest of each separate tranche of term loans then existing and not so benefited, (it being agreed that no provision requiring the Borrower to prepay term loans of one or more Incremental Facilities with the proceeds of Dispositions, Involuntary Dispositions, Debt Issuances, Equity Issuances or with the proceeds of excess cash flow will be deemed to violate this clause). In connection with The loans, commitments and borrowings of any Incremental FacilityFacility established pursuant to this Section 11.01(b) shall constitute Loans, any Lender becoming a party hereto shall (1) execute such documents Commitments and agreements as the Administrative Agent may reasonably request Borrowings under, and (2) in the case of any 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 entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranty set forth in Article IV hereunder and the security interests and Liens created by the Collateral Documents, and the Borrower shall take any actions reasonably required by the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, ensure and/or demonstrate that the Patriot Actrequirements of this sentence are satisfied after the establishment of any such Incremental Facility.
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Incremental Facilities. (a) So long as no 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 under one or more new term loan credit facilities to be included in this Agreement (the commitments thereunder, the “Incremental Term Loan Commitments” and each a “New Term Facility”), (ii) to increase the existing Term Loans by requesting new term loan commitments to be added to an existing Tranche of Term Loans (the “Supplemental Term Loan Commitments”), (iii) to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”), (iv) to increase any Incremental Revolving Commitments by requesting new revolving credit commitments to be added to an existing Tranche of Incremental Revolving Credit Commitments (the “Supplemental 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, the Supplemental Term Loan Commitments, the Incremental Revolving Commitments, the Supplemental Revolving Commitments and the “Incremental Commitments”) by an amount not to exceed the Incremental Amount (at the time of incurrence or establishment of such Incremental Commitment). Any loans made in respect of any such Incremental Commitment (other than Supplemental Term Loan Commitments and Supplemental Revolving Commitments) shall be made by creating a new Tranche. Each Incremental Commitment made available pursuant to this Section 2.14 shall be in a minimum aggregate amount of at least $5,000,000 and in integral multiples of $1,000,000 in excess thereof (or such lesser amounts as the Administrative Agent may agree).
(b) Each request from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (other than any Disqualified Lender) (any such bank or other financial institution, an “Additional Lender”); provided that, if such Additional Lender is not already a Lender hereunder or an Affiliate of a Lender hereunder, such Additional Lender shall be subject to the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) to the extent required pursuant to Section 10.07 (it being understood that any such Additional Lender that is an Affiliate Lender shall be subject to the provisions of Section 10.07(i), mutatis mutandis, to the same extent as if such Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment).
(c) Supplemental Term Loan Commitments and Supplemental Revolving Commitments shall become commitments under this Agreement pursuant to a supplement specifying the Tranche of Term Loans or Tranche of Incremental Revolving Loans, as applicable, to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit M-1 (the “Increase Supplement”) or by each Additional Lender substantially in the form attached hereto as Exhibit M-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent for recording in the Register pursuant to which such Lender or Additional Lender agrees to commit to all or a portion of such Incremental Commitment, and in the case of an Additional Lender, to be bound by the terms of this Agreement as a Lender. The Borrower may agree to accept a lesser amount of any Incremental Commitment than originally requested. In the event there are Lenders and Additional Lenders that have committed to an Incremental Commitment in excess of the maximum amount requested (or permitted), then the Borrower shall have the right to request increases in allocate such commitments on whatever basis the aggregate amount Borrower determines is appropriate. Upon effectiveness of the Lender Joinder Agreement each Additional Lender shall be a Lender for all intents and purposes of this Agreement and the term loan made pursuant to such Supplemental Term Loan Commitment shall be a Term Loan and the Supplemental Revolving Commitment shall be an Incremental Revolving Commitment.
(d) Incremental Commitments or the making of incremental term loans hereunder (“Incremental other than Supplemental Term Loans”, Loan Commitments and any such increase or Incremental Term Loans, Supplemental Revolving Commitments) shall become commitments under this Agreement pursuant to an amendment (an “Incremental FacilityCommitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by providing written notice the Borrower, each Additional 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, which notice shall to effect the provisions of this Section 2.14 (including, without limitation, with respect to any Incremental Commitments to be irrevocable once given; secured on a junior basis by the Collateral, appropriate modifications, if any, to Sections 2.05(b)(vi), 8.02 and 8.04 of this Agreement and to the Guaranty, the Security Agreement and the Pledge Agreement), provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loansi) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion Incremental Commitments will not be guaranteed by any Subsidiary of the outstanding principal amount of Borrower other than the Guarantors, and will be secured on a pari passu or (at the Borrower’s option) junior basis by the same Collateral securing the Loans (so long as any such Revolving Loans Incremental Commitments (and related Obligations) are subject to be purchased by such Lenderthe ABL/Term Loan Intercreditor Agreement or an Other Intercreditor Agreement, plus including a Junior Priority Intercreditor Agreement, as applicable), (B) the aggregate amount of payments previously made by Incremental Commitments and any incremental loans drawn thereunder (the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving “Incremental Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i”) shall rank pari passu in right of payment with or (at the Revolving Borrower’s option) junior to the Loans and Term (C) no Incremental Commitment Amendment may provide for any Incremental Commitment or any Incremental Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans, ; (ii) shall no Lender will be equally and ratably secured with the Revolving Loans and Term Loans, required to provide any such Incremental Commitment unless it so agrees; (iii) in the case of a New Term Facility, the maturity date and the Weighted Average Life to Maturity of such Incremental Commitments shall be no earlier than or shorter than, as the case may be, the Maturity Date or the Weighted Average Life to Maturity of the Initial Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and as applicable; (iv) the interest rate margins, (subject to Section 2.14(d)(iii)) amortization schedule, original issue discount (“OID”), upfront fees and interest rate floors applicable to the loans made pursuant to the New Term Facilities or Incremental Revolving Facilities shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made determined by the Borrower and the applicable Additional Lenders; provided that in the event that the applicable interest rate margins for any Incremental Term Loans incurred by the Borrower under any New Term Facilities are higher than the applicable interest rate margin for the Initial Term Loans by more than 25 basis points, then the Applicable Rate for the Initial Term Loans shall be increased to the extent necessary so that the applicable interest rate margin for the Initial Term Loans is equal to the applicable interest rate margins for such New Term Facilities minus 25 basis points; provided, further, that in determining the applicable interest rate margins for the Initial Term Loans and the New Term Facilities, (A) OID or upfront fees payable generally to all participating Additional Lenders in lieu of OID (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any New Term Facilities in the initial primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity); (B) any arrangement, structuring or other Loan Party fees payable in connection with the New Term Facilities that are not shared with all Additional Lenders providing such New Term Facilities shall be excluded; (C) any amendments to the Applicable Rate on the Initial Term Loans that became effective subsequent to the Closing Date but prior to the time of such New Term Facilities shall also be included in such calculations and (D) if the New Term Facilities include an interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Rate for the Initial Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to the Initial Term Loans set forth in the last sentence of the definition of Eurodollar Rate and Base Rate, respectively, shall be increased by such amount; (v) such Incremental Commitment Amendment may (1) provide for the inclusion, as appropriate, of Additional Lenders in any Loan Document required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder, (2) provide class voting and other class protections for any additional credit facilities, (3) provide for adjustments to which such Loan Party is a party shall be true the definition of “Defaulting Lender” and correct in all material respects add “Defaulting Lender” protections and (except 4) in the case of a representation an Incremental Revolving Credit Commitment or warranty qualified by materiality Incremental Letter of Credit Commitment, add appropriate modifications to Section 2.15 to provide for “amend and extend” mechanics for Incremental Revolving Credit Commitments or Material Adverse Effectan Incremental Letter of Credit Commitment (and related Obligations) and appropriate modifications to Section 2.20 to provide to “refinancing facilities” mechanics for Incremental Revolving Credit Commitments and Incremental Letter of Credit Commitments (and related Obligations), in which each case such representation or warranty shall be true under this clause (4) and correct in all respectsthe preceding clause (3) on terms substantially similar to the effective equivalent terms in the ABL Facility Agreement as in effect on the date of hereof (as determined in good faith by the Borrower); and (vi) the other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Amendment, shall otherwise be reasonably satisfactory to the Borrower, provided that, to the extent such increase terms and documentation are not consistent with, the terms and documentation governing the existing Loans (except to the extent that such representations and warranties expressly relate solely to an earlier date permitted by clause (in which case such representations and warranties shall have been true and correct in all material respects iii), (except in the case of a representation iv) or warranty qualified by materiality or Material Adverse Effect(v) above), in which case such representation or warranty they shall be true and correct in all 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 (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
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Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”may, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent and each Lender, request, prior to the last day of the Revolving Period, an increase to the existing Commitments (any such increase, the “New Commitments”) by an amount (x) with the consent of the Administrative Agent and each Lender whose Commitment is being increased thereby in their respective sole discretion and subject to any internal approvals, which would increase the Facility Amount to $250,000,000 or (y) with the consent of the Administrative Agent, the Required Lenders and each Lender whose Commitment is being increased thereby in their respective sole discretion and subject to any internal approvals, which would increase the Facility Amount to an amount greater than $250,000,000. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be irrevocable once giveneffective and approved in writing by the Administrative Agent and (ii) the identity of each Lender or other Person (each, an “Increasing Lender”) to whom the Borrower proposes any portion of such New Commitments be allocated and the amounts of such allocations (if then known). 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, however, provided that (A) no Event of Default or Borrowing Base Deficiency shall exist on such Increased Amount Date before or after giving effect to any such Incremental Facility New Commitments; (B) the aggregate amount of the sum of the Revolving New Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be effected pursuant to an aggregate minimum amount of $25,000,000 Assignment and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with Acceptance for each existing Lender 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 manage all aspects of be recorded in the syndication of such Incremental Facilities, including decisions as to Register; (C) the selection of Borrower shall pay any applicable Breakage Fees in connection with the existing Lenders and/or New Commitments and shall pay any other banks, financial institutions and other institutional lenders required fees in connection with the New Commitments; (D) the Borrower shall deliver or cause to be approached delivered any legal opinions or other customary closing documents (substantially consistent with respect to such increase the documents set forth in Section 3.01) reasonably requested by Administrative Agent or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No an Increasing Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new transaction; and (E) the effectiveness of any allocation of New Commitments to a non-Lender is assuming Revolving Commitments, must 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 Issuing Bank of the existing Lenders shall assign to each of the Increasing Lenders, and each of the Swingline Lender. If a new Lender becomes a party to this AgreementIncreasing Lenders shall purchase from each of the existing Lenders, or if any existing Lender is increasing its Revolving Commitmentat the principal amount thereof (together with accrued interest), such Lender shall on the date it becomes a Lender hereunder (or interests in the case of an 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 Lender, increases its Revolving Commitment) (Lenders and as a condition thereto) purchase from the other Increasing Lenders its Revolving Commitment Percentage (determined ratably in accordance with respect to the Lenders’ respective Revolving their Commitments and after giving effect to the increase addition of Revolving Commitments) of any outstanding Revolving Loans, by making available such New Commitments to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term LoansCommitments, (ii) each New Commitment shall be equally deemed, for all purposes, a Commitment and ratably secured with the Revolving Loans each Advance made thereunder (a “New Advance”) shall be deemed, for all purposes, an Advance and Term Loans, (iii) each new Lender shall become a Lender with respect to the Commitments and all matters relating thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the New Commitments and the Increasing Lenders and (ii) in the case of Incremental Term Loanseach notice to any Lender, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Daterespective interests in such ▇▇▇▇▇▇’s Advances, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is each case subject to the following conditions precedent: assignments contemplated by this Section 2.19.
(xd) no Default or Event The terms and provisions of Default the New Advances shall be in existence on identical to the effective date Advances. Each Assignment and Acceptance or each Joinder Supplement, as applicable, may, without the consent of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document Lenders, effect such amendments to which such Loan Party is a party shall this Agreement and the other Transaction Documents as may be true and correct in all material respects (except necessary or appropriate, in the case opinion of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower and consented to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, to effect the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by provisions of this Section 2.172., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
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Sources: Loan and Servicing Agreement (BlackRock TCP Capital Corp.)
Incremental Facilities. The (a) At any time following the Restatement Effective Date, the Parent Borrower shall have on behalf of the right Borrowers may by written notice to Administrative Agent elect to request the establishment of one or more increases in Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”), by an aggregate amount not in excess of (when taken together with the aggregate amount of (the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental FacilityExcess Amount”) by providing written notice to of New Loan Commitments (as defined in the Administrative Agent, which notice shall be irrevocable once given; provided, however, that CF Agreement after giving effect to any such Incremental exclusions thereto) under the CF Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder such Incremental Revolving Credit Commitments become effective) $1,500,000,000 in the aggregate and not less than $100,000,000 individually (or in the case of an existing Lender, increases its Revolving Commitmentsuch lesser amount as (x) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, may be approved by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and or (y) shall have no amortization 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 otherwise be permitted to be prepaid prior to such date). Each such notice shall specify the Term Loan Maturity date (each, an “Increased Amount Date, and (iv”) on which the Parent Borrower on behalf of the Borrowers proposes that the Incremental Revolving Credit Commitments shall be treated substantially effective, which shall be a date not less than ten Business Days (or such shorter period as the same (and in any event not more favorably thanAdministrative Agent may reasonably agree) after the Revolving Loans. Effecting any Incremental Facility under this Section date on which such notice is subject delivered to the following conditions precedent: Administrative Agent. The Parent Borrower may approach any Lender or any other Person (xother than a natural person) to provide all or a portion of the Incremental Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a portion of the Incremental Revolving Credit Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment. In each case, such Incremental Revolving Credit Commitments shall become effective, as of the applicable 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 existence on Pro Forma Compliance with the effective date covenant set forth in Section 10.8 of the CF Agreement as of the last day of the most recently ended fiscal quarter after giving effect to such increase, Incremental Revolving Credit Commitments and any Investment to be consummated in connection therewith; (yiv) the representations Incremental Revolving Credit Commitments shall be effected pursuant to one or more Joinder Agreements executed and warranties made or deemed made delivered by the Borrower Borrowers and any other Loan Party in any Loan Document to Administrative Agent, and each of which such Loan Party is a party shall be true and correct in all material respects (except recorded in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty Register and shall be true and correct in all respects) on the effective date of such increase except subject to the extent that such representations and warranties expressly relate solely to an earlier date (requirements set forth in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respectsSections 5.4(d) on and as of such earlier date), and (ze); (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 shall have received 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 followingLenders with Revolving Credit Commitments shall assign to each Lender with an Incremental Revolving Credit Commitment (each, a “Incremental Revolving Loan Lender”) and each of the Incremental Revolving Loan Lenders shall purchase from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof (together with accrued interest), 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 Lenders and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments, (b) each Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to 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 Revolving Credit Loans and the 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 form and substance satisfactory to the Administrative Agent: (i) if not previously delivered to opinion of the Administrative Agent, copies certified by to effect the Secretary or Assistant Secretary provision of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.172.14., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
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Incremental Facilities. (a) The Parent Borrower shall have may, by written notice to the right Administrative Agent at any time, on one or more occasions, request to request increases in (i) add one or more new tranches of term facilities and/or increase the aggregate principal amount of the Revolving Commitments Term Loans, any Incremental Term Loans or the making of incremental any Specified Refinancing Term Loans by requesting new term loans hereunder commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”, and ) and/or (ii) add one or more new tranches of incremental revolving facilities and/or increase the principal amount of any such increase or tranche of incremental revolving facilities (each, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, an “Incremental FacilityLoans”) by providing written notice in an aggregate amount not to exceed the Administrative Agent, which Incremental Amount. Such notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility set forth (i) the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans and/or Incremental Revolving Commitments being requested (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) which shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the with respect to Incremental Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Datedenominated in dollars, in minimum increments of $15,000,000, and (iv) shall be treated substantially the same (and with respect to Incremental Term Loans denominated in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event Canadian Dollars, in minimum increments of Default shall be in existence on the effective date of such increase$7,500,000, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party with respect to Incremental Revolving Commitments denominated in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effectdollars, in which case such representation or warranty shall be true minimum increments of $10,000,000, and correct with respect to Incremental Revolving Commitments denominated in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse EffectCanadian Dollars, in which case such representation minimum increments of $5,000,000 or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory equal to the Administrative Agent: (iremaining Incremental Amount) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) the date, which shall be a supplement Business Day, on which such Incremental Term Loans are requested to this Agreement executed be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice. CREDIT AGREEMENT, Page 61 (b) Incremental Loans may be provided by the Borrowerany existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and any Lender Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facility, which supplement may include Facilities if such amendments consent would be required under Section 10.04(b) for an assignment of Loans to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17Additional Lender., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
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Incremental Facilities. The Borrower (a) At any time during the period from and after the Closing Date through but excluding the Maturity Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Revolver Increase Amount (each such increase, an “Increase”). Agent shall have 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 right interest margin proposed by Borrowers, and if sufficient Lenders do not agree to request increases 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 $2,500,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than 2 occasion 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 Revolving Increases to the Revolver Commitments exceed $10,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the making commitment of incremental term loans hereunder one or more Lenders (“Incremental Term Loans”, or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such increase Lenders (or Incremental Term Loansprospective lenders), an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party 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 such requested increase must be an Eligible Assignee andIncrease, 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 new Lender is assuming Revolving Commitmentsother documentation as Agent shall reasonably request, must be subject in order to the consent of each Issuing Bank enable Agent and the Swingline Lender. If a new Lender becomes a party Lenders to this Agreementcomply with any of the requirements under Regulations T, U or if any existing Lender is increasing its Revolving Commitment, such Lender shall on X of the date it becomes a Lender hereunder Federal Reserve Board,
(or in the case of an existing Lender, increases its Revolving Commitmentiv) Borrowers have delivered to Agent updated pro forma Projections (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of Revolving Commitmentsthe applicable Increase, and
(v) of any outstanding Revolving Loans, by making available The interest rate margins with respect to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay pursuant to the increased Revolver Commitments shall be the same as the interest rate margin applicable to Revolving Lenders amounts payableLoans hereunder immediately prior to the applicable Increase Date (as defined below).
(c) Unless otherwise specifically provided herein, if anyall references in this Agreement and any other Loan Document to Revolving Loans shall be deemed, unless the context otherwise requires, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. include Revolving Loans made pursuant to any the increased Revolving Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14.
(d) Each of the Lenders having a Revolver Commitment and prior to the Incremental Term Loans Increase Date (ithe “Pre-Increase Revolver Lenders”) shall rank pari passu assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) participation interests in the case Letters of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence Credit on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Increase Date as shall be necessary for 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 Administrative 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 comply with “know your customer” ensure and Anti-Money Laundering Laws, including without limitation, demonstrate that the Patriot ActLiens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
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Incremental Facilities. (a) The Borrower Parent and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall have make, obtain or increase the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder their Term Loans (any such Terms Loans, “Incremental Term Loans”, and any such increase ) or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loansapplicable, by making available executing and delivering to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to Increased Facility Activation Notice specifying (Ai) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment increase and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term LoansFacility or Facilities involved, (ii) shall be equally the applicable Increased Facility Closing Date and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (xA) shall not mature earlier than the applicable Incremental Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, (B) the amortization schedule for such Incremental Term Loans, and (iv) shall be treated substantially the same (and in any event not more favorably thanC) the Applicable Margin for such Incremental Term Loans; provided, that (1) upon the effectiveness of each Incremental Term Loan or increase in Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) Commitments no Default or Event of Default has occurred and is continuing or shall be result therefrom; (2) on a Pro Forma Basis after giving effect to the incurrence of any Incremental Term Loans or increased Revolving Commitments, (assuming in existence on the effective date case of an increase in the Revolving Commitments the full drawing of such increaseincreased Revolving Commitments and, without duplication, after giving effect to (x) the borrowing of any Revolving Loans on such day under such increased Revolving Commitments, (y) other permitted pro forma adjustment events and (z) any permanent repayment of Indebtedness after the beginning of the relevant determination period but prior to or simultaneous with borrowing), the Parent is in compliance with the financial covenants in Section 7.1; (3) in the case of an incurrence of an Incremental Term Loan, the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (4) upon the effectiveness of each incurrence of any Incremental Term Loans or increase in Revolving Commitments, each of the representations and warranties made or deemed made by the Borrower and any other Loan Party in any or pursuant to the Loan Document to which such Loan Party is a party Documents shall be true and correct in all material respects (except in to the case of extent (i) any such representations and warranties relate, by their terms, to a representation or warranty qualified by materiality or Material Adverse Effectspecific date, in which case such representation or warranty representations and warranties shall be true and correct in all material respects on and as of such specific date and (ii) any such representations and warranties are qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z5) the Administrative Agent shall have received each all flood hazard determination certifications, acknowledgements and evidence of the following, in form flood insurance and substance satisfactory other flood-related documentation with respect to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified real property Collateral as required by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility applicable law and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested required by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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” applicable law or the requirements of its regulators. Notwithstanding the foregoing, (i) the aggregate amount of borrowings of Incremental Term Loans and Anti-Money Laundering Lawsincremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph (together with the aggregate amount of all Incremental Equivalent Indebtedness incurred after the Closing Date) shall not exceed the Incremental Amount and (ii) without the consent of the Administrative Agent, including without limitationeach increase effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 or if less the balance of the remaining aggregate principal amount available. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent (which consent shall not be unreasonably withheld) of the Parent, the Patriot ActAdministrative Agent, the Issuing Lenders (in the case of a Revolving Facility only) and the Swingline Lender (in the case of a Revolving Facility only), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit G, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the Revolving Facility, the Borrowers 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 Parent and the relevant Lender).
Appears in 1 contract
Incremental Facilities. The (a) TheAt any time following the Second Restatement Effective Date, the Parent Borrower shall have on behalf of the right Borrowers may by written notice to Administrative Agent elect to request the establishment of one or more increases in New Revolving Credit Commitments (the “Incremental Revolving Credit 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 inafter giving effect on the Original Closing Dateto any exclusions thereto) under the CF Facility on the date such Incremental Revolving Credit Commitments become effective) $1,500,000,000 in the aggregate and not less than $100,000,000 individually (or such lesser amount of 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 notice shall specify the making of incremental term loans hereunder date (“Incremental Term Loans”, and any such increase or Incremental Term Loanseach, an “Incremental FacilityIncreased Amount Date”) by providing written on which the Parent Borrower on behalf of the Borrowers proposes that the Incremental Revolving Credit Commitments shall be effective, which shall be a date not less than ten Business Days after the date on which such notice is delivered to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of Parent Borrower may approach any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage Lender or any other Person (other than a natural person) to provide all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Incremental Revolving Loans Credit Commitments; provided that any Lender offered or approached to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such provide all or a portion of the outstanding principal amount of such Incremental Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payableCredit Commitments may elect or decline, if anyin its sole discretion, to provide a Incremental Revolving Credit Commitment. In each case, such Incremental Revolving Lenders under Section 5.4. Credit Commitments shall become effective, as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans applicable Increased Amount Date; provided that (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence exist on the effective date of such increase, (y) the representations and warranties made Increased Amount Date before or deemed made by the Borrower and any other Loan Party in any Loan Document after giving effect to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporateRevolving Credit Commitments, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facilityas applicable; (ii) a supplement both before and after giving effect to this Agreement executed by the Borrowermaking of any Incremental Revolving Loans, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent each of the Guarantors theretoconditions set forth in Section 7 shall be satisfied; (iii) an opinion the Parent Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenant set forth in Section 10.910.8 of counsel 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 Guarantors, and addressed 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. 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 covering with New Revolving Credit Commitments shall assign to each Lender with a Incremental Revolving Credit Commitment (each, a “Incremental Revolving Loan Lender”) and each of the Incremental Revolving Loan Lenders shall purchase from each of the Lenders with New Revolving Credit Commitments, at the principal amount thereof (together with accrued interest), such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, interests in the amount of New Revolving Credit Loans outstanding on such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 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 Administrative Agent to comply with “know your customer” Incremental Revolving Loan Commitment and Anti-Money Laundering Laws, including without limitation, the Patriot Actall matters relating thereto.
Appears in 1 contract
Incremental Facilities. The Subject to the terms and conditions set forth herein, the Borrower shall have the right right, from time to request increases time prior to the date that is three years following the Closing Date, to incur additional Indebtedness under this Credit Agreement in the aggregate amount form of an increase to the Aggregate Revolving Commitments or Committed Amount (the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Revolving Facility”) by providing written notice the amount of up to $5,000,000. The following terms and conditions shall apply to the Incremental Revolving Facility: (a) the loans made under the Incremental Revolving Facility (each an “Additional Revolving Loan”) shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (b) the Incremental Revolving Facility shall have the same terms (including interest rate and maturity date) as the existing Revolving Loans, (c) any such Incremental Revolving Facility shall be in a minimum principal amount of $2,500,000 and integral multiples of $500,000 in excess thereof, (d) the Incremental Revolving Facility shall be entitled to the same voting rights as the existing Revolving Loans and shall be entitled to receive proceeds of prepayments on the same basis as the existing Revolving Loans, (e) the Incremental Revolving Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below, (f) the proceeds of the Additional Revolving Loan will be used for the purposes set forth in Section 3.11, (g) the Borrower shall execute a Revolving Note in favor of any new Lender or any existing Lender requesting a Revolving Note whose Revolving Committed Amount is increased, (h) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied and (i) the Administrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, which notice shall be irrevocable once given; provideddemonstrating that, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Incremental Revolving Commitments) of any outstanding Revolving LoansFacility on a Pro Forma Basis, by making available to the Administrative Agent for the account of such other Lenders, Borrower will be in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment compliance with the Revolving Loans financial covenants set forth in Section 5.9 and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be exist. Participation in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party Incremental Revolving Facility shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase except offered first 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the followingexisting Lenders, in form and substance satisfactory but each such Lender shall have no obligation to provide all or any portion of the Incremental Revolving Facility. If the amount of the Incremental Revolving Facility shall exceed the commitments which the existing Lenders are willing to provide with respect to the Administrative Agent: (i) if not previously delivered to the Administrative AgentIncremental Revolving Facility, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by then the Borrower to authorize such Incremental Facility may invite other banks, financial institutions and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems investment funds reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed acceptable to the Administrative Agent and to join this Credit Agreement as Lenders hereunder for the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time portion of the effectiveness of the applicable Incremental Facility. In connection with any Incremental FacilityRevolving Facility not taken by existing Lenders, any Lender becoming a party hereto provided that such other banks, financial institutions and investment funds shall (1) execute enter into such documents and joinder agreements to give effect thereto as the Administrative Agent may reasonably request and (2) in the case of any Lender that request. The Administrative Agent is organized under the laws of a jurisdiction outside authorized to enter into, on behalf of the United States of AmericaLenders, provide any amendment to the Administrative Agent, its name, address, tax identification number and/or such this Credit Agreement or any other information Credit Document as shall may be necessary for to incorporate the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, terms of the Patriot ActIncremental Revolving Facility therein.
Appears in 1 contract
Sources: First Lien Credit Agreement (American Pacific Corp)
Incremental Facilities. (a) The Borrower shall have may on one or more occasions, by written notice to the right to Agent, request increases in the establishment, during the Availability Period, of Incremental Commitments, provided that the aggregate amount of all the Revolving Incremental Commitments established hereunder shall not exceed the Incremental Facility Maximum Amount during the term of this Agreement. Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than five Business Days (or such shorter period as may be agreed to by the making of incremental term loans hereunder (“Incremental Term Loans”Agent) after the date on which such notice is delivered to the Agent, and any such increase or Incremental Term Loans, an “Incremental Facility”(ii) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans Incremental Commitments, being requested (including it being agreed that (A) any Lender approached to provide any Incremental Commitment may elect or decline, in its sole discretion, to provide such Incremental Term LoansCommitment and (B) shall any Person that the Borrower proposes to become an Incremental Lender, if such Person is not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangersthen a Lender, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee andand must be approved by the Agent, which approval shall not be unreasonably withheld or delayed).
(a) (b) The terms and conditions of any Incremental Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and the Loans and other extensions of credit made thereunder; provided that, if the Borrower determines to increase the interest rate or fees payable in respect of Incremental Commitments or Loans and other extensions of credit made thereunder, such new increase shall be permitted if the interest rate or fees payable in respect of the other Commitments or Loans and other extensions of credit made thereunder, as applicable, shall be increased to equal such interest rate or fees payable in respect of such Incremental Commitments or Loans and other extensions of credit made thereunder, as the case may be.
(b) (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank providing such Incremental Commitments and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender Agent; provided that no Incremental Commitments shall become effective unless (i) on the date it becomes a Lender hereunder of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and including after giving effect to the increase making of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans thereunder to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payabledate), if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall have occurred and be in existence continuing, (ii) on the effective date of effectiveness thereof and after giving effect to the making of Loans thereunder to be made on such increasedate, (y) the representations and warranties made or deemed made by of the Borrower and any other set forth in the Loan Party in any Loan Document to which such Loan Party is a party Documents shall be true and correct (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects (respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a representation or warranty qualified by materiality or Material Adverse Effectprior date, in which case such representation or and warranty shall be so true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier prior date), (iii) after giving effect to such Incremental Commitments, the Maximum Available Amount shall not exceed the maximum aggregate principal amount of secured Indebtedness of the Borrower permitted by the NHL to be outstanding at such time, (iv) the Borrower shall make any payments required to be made pursuant to Section 2.13 in connection with such Incremental Commitments and the related transactions under this Section, and (zv) the Administrative Agent Borrower shall have received each delivered to the Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents as shall reasonably be requested by the Agent in connection with any such transaction. Each Incremental Facility Agreement may, without the consent of any Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the followingAgent, in form and substance satisfactory to give effect to the Administrative Agent: provisions of this Section.
(c) (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) if not previously delivered such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the Administrative Agentrights of, copies certified and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the Secretary or Assistant Secretary of other Loan Documents and (ii) (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility Commitment shall constitute (or, in the event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and (B) all corporate, partnership, member or other necessary action taken the Aggregate Commitment shall be increased by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment Incremental Commitment, in each case, subject to further increase or aggregate Term Loans at reduction from time to time as set forth in the time definition of the term “Commitment”. For the avoidance of doubt, upon the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitationCommitment, the Patriot ActExposures and the Applicable Percentages of all the Lenders shall automatically be adjusted to give effect thereto.
Appears in 1 contract
Sources: Credit Agreement (Madison Square Garden Sports Corp.)
Incremental Facilities. (i) The Borrower shall have the right may by written notice to Agent elect to request increases in the establishment of one or more new term loan commitments (the “New Term Loan Commitments”) and/or (prior to the Commitment Termination Date), an increase to the existing Revolving Loan Commitment (any such increase, the “New Revolving Loan Commitments”); provided that, (i) the aggregate amount of the all such New Term Loan Commitments and New Revolving Loan Commitments or the making of incremental term loans hereunder shall not exceed $100,000,000 and (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”ii) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the all New Revolving Loan Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,00050,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans Any such increased commitment or new loan shall be made at the time Borrower requests such increase. Each such Incremental Facility must be in an aggregate minimum amount of not less than $25,000,000 10,000,000 individually and integral multiples of $5,000,000 in excess thereofof that amount. The Arrangers, in consultation with the Borrower, Each such notice shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to specify (A) the portion of date (each, an “Increased Amount Date”) on which the outstanding principal amount of Borrower proposes that the New Revolving Loan Commitments or New Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 15 Business Days after the date on which such Revolving Loans notice is delivered to be purchased by such Lender, plus Agent and (B) the aggregate amount identity of payments previously made by each Lender or other Person reasonably acceptable to the other Agent (each, a “New Revolving Lenders under Section 2.4.(jLoan Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such New Revolving Loan Commitments or New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that have not been repaidAgent (and/or its Affiliates) may elect or decline to arrange such New Revolving Loan Commitments or New Term Loan Commitments in its sole discretion and any Lender approached to provide all or a portion of the New Revolving Loan Commitments or New Term Loan Commitments may elect or decline, plus (C) interest accrued and unpaid in its sole discretion, to and provide a New Revolving Loan Commitment or a New Term Loan Commitment. Such New Revolving Loan Commitments or New Term Loan Commitments shall become effective as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans Increased Amount Date; provided that (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x1) no Default or Event of Default shall exist on such Increased Amount Date before and after giving effect to such New Revolving Loan Commitments or New Term Loan Commitments, as applicable; (2) both before and after giving effect to such New Revolving Loan Commitments or to the making of any New Term Loans, each of the conditions set forth in Section 7.2 shall be in existence satisfied; (3) both immediately before and after giving effect to such New Revolving Loan Commitments or New Term Loans on the effective date of such increasea Pro Forma Basis, (y) the representations and warranties made or deemed made by Holdings, the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party their respective Subsidiaries shall be true and correct in all material respects pro forma compliance with the financial covenants set forth in Section 4; (except in 4) the case of a representation New Revolving Loan Commitments or warranty qualified by materiality or Material Adverse EffectNew Term Loan Commitments, in which case such representation or warranty as applicable, shall be true effected pursuant to one or more Joinder Agreements executed and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent New Revolving Loan Lender or New Term Loan Lender, as applicable, and the Agent, each of which Joinder Agreements shall be recorded in the Register, and each New Revolving Loan Lender or New Term Loan Lender shall be subject to the requirements set forth in Sections 1.9(c) and (d); (5) the Borrower shall pay any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together LIBOR Breakage Fee payable in connection with the consent of the Guarantors theretoNew Revolving Loan Commitments, as applicable; and (iii6) an opinion of counsel to the Borrower and the Guarantors, and addressed shall deliver or cause to the Administrative Agent and the Lenders covering such matters as be delivered any legal opinions or other documents reasonably requested by the Administrative Agent; Agent in connection with any such transaction. Any New Term Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of New Term Loans for all purposes of this Agreement.
(ii) On any Increased Amount Date on which New Revolving Loan Commitments are effected, subject to the satisfaction of the terms and conditions set forth in the foregoing clause (i), (A) each of the Revolving Lenders shall assign to each of the New Revolving Loan Lenders, and each of the New Revolving Loan Lenders shall purchase from each of the Revolving 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 New Revolving Loan Lenders ratably in accordance with their Revolving Loan Commitments after giving effect to the addition of such New Revolving Loan Commitments to the Revolving Loan Commitments, (B) each New Revolving Loan Commitment shall be deemed for all purposes a Revolving Loan Commitment and each Loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (C) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Loan Commitment and all matters relating thereto.
(iii) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (A) each New Term Loan Lender of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (B) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(iv) new or replacement Revolving Notes or Term Notes executed by The Agent shall notify Lenders promptly upon receipt of the Borrower, payable to any ’s notice of each Increased Amount Date and in respect thereof (A) the New Revolving Loan Commitments and the New Revolving Loan Lenders participating in or the Series of New Term Loan Commitments and the New Term Loan Lenders of such Incremental FacilitySeries, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2B) in the case of each notice to any Lender that is organized under Revolving Loan Lender, the laws respective interests in such Revolving Loan Lender’s Revolving Loans subject to the assignments contemplated by clause (ii) of a jurisdiction outside this Section 1.1(e).
(v) The pricing, maturity and all other terms and provisions of the United States New Revolving Commitments and New Revolving Loans shall be the same as the Revolving Loans. The terms and provisions of Americathe New Term Loans and New Term Loan Commitments of any Series shall be, provide except as otherwise set forth herein or in the Joinder Agreement, substantially the same as the Initial Term Loan. In any event (A) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the weighted average life to maturity of the Initial Term Loans; (B) the maturity date for the New Term Loan of any Series shall be no earlier than the final maturity of the Initial Term Loans; and (C) the yield applicable to the Administrative Agent, its name, address, tax identification number and/or such other information as New Term Loans of each Series shall be necessary for determined by the Administrative Borrower and the applicable New Term Lenders and shall be set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to the New Term Loans (after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such New Term Loans) shall not be greater than the applicable yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans (including any upfront fees, floors or original issue discount payable to the Initial Term Lenders hereunder) plus 0.50% per annum unless the interest rate with respect to the Initial Term Loans is increased so as to cause the then applicable yield under this Agreement on the Initial Term Loans (after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to the Initial Term Loans) to equal the yield applicable to the New Term Loans (after giving effect to all upfront or similar fees, floors or original issue discount payable with respect to such New Term Loans). 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 reasonably necessary, in the opinion of Agent to effect the provisions of this Section 1.1(e); provided that any amendments to Section 6.5 made in connection with this Section 1.1(e) shall also comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot ActSection 9.2.
Appears in 1 contract
Sources: Credit Agreement (TNS Inc)
Incremental Facilities. The (a) So long as no Event of Default exists or would arise therefrom, the Borrower shall have the right right, at any time and from time to time after the Second Amendment Effective Date to (i) request increases new term loan commitments under one or more new term loan credit facilities to be included in this Agreement and/or increase the aggregate principal amount of the Revolving Commitments or the making any class of incremental term loans hereunder Term Loans (each, an “Incremental Term Facility” and, collectively, the “Incremental Term Loan Commitments”) and/or (ii) increase the Total Revolving Commitment (each, an “Incremental Revolving Facility” and, such commitments, the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans”” and, and together with any such increase or Incremental Term Loans, an “Incremental FacilityLoans”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility so long as the aggregate amount of the sum of the Revolving Commitments plus the outstanding principal amount of all unutilized Incremental Commitments and Incremental Loans does not exceed the Incremental Amount (and the Borrower shall deliver a certificate, on or prior to the date on which such Incremental Commitment shall become effective to the Facilities Administrative Agents certifying that the Borrower is in compliance with this Section 4.17). Any Incremental Term Loan Commitment Incurred in the form of increases to any Class of existing Term Loans (including any shall be identical to and form part of such Incremental Term Loans) . Any Incremental Revolving Commitments shall not exceed $650,000,000. The allocation be Incurred in the form of any increase between increases to the Revolving Commitments and Incremental Term Loans shall be made at identical to and form part of such Revolving Facility.
(b) Each request from the time Borrower requests such increase. Each such pursuant to this Section 4.17 shall set forth the requested amount and proposed terms of the relevant Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereofCommitments. The ArrangersIncremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”) subject, in consultation with the Borrowerrespect of any Additional Lender not already a Lender hereunder, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect same consent requirements that would apply to such increase or Lender as an assignee pursuant to Section 11.6. Any allocation of any Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Commitments to any Affiliated Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent terms of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date11.6(g), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 1 contract
Incremental Facilities. The Borrower shall have (a) At any time from and after the right Closing Date, at the option of Borrowers and with the reasonable consent of Agent (but subject to request increases the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate amount for each such increase of the Revolving Revolver Commitments or and the making of incremental term loans hereunder Maximum Revolver Amount not to exceed the Available Increase Amount (“Incremental Term Loans”, and any each such increase or Incremental Term Loansincrease, an “Incremental FacilityIncrease”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given); provided, howeverthat, that after giving effect to each such Increase, the Revolver Commitments and the Maximum Revolver Amount shall in no event exceed $125,000,000. Promptly after receipt of notice by Borrowers to Agent of any proposed 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 Incremental Facility the aggregate proposed Increase within ten Business Days after notice from Agent, 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 the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed at least $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 10,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with In no event may the Borrower, shall manage all aspects Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than two occasions during the term of this Agreement.
(b) Each of the syndication of such Incremental Facilities, including decisions as following shall be conditions precedent to the selection any Increase of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans Revolver Commitments and the allocations thereof among Maximum Revolver Amount in connection therewith: (i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such existing Lenders and/or other banks(or prospective lenders), financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party joinder agreement to this Agreement (an “Increase Joinder”), in connection with any form and substance reasonably satisfactory to Agent, to which such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder Lenders (or in the case of an existing Lenderprospective lenders), increases its Revolving CommitmentBorrowers, and Agent are party, (ii) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion each of the outstanding principal amount of such conditions precedent set forth in Section 3.2 are satisfied,
(c) [Reserved].
(d) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Loans to shall be purchased by such Lenderdeemed, plus (B) unless the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if anycontext otherwise requires, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. include Revolving Loans made pursuant to any the increased Revolving Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14. (e) Each of the Lenders having a Revolver Commitment and prior to the Incremental Term Loans Increase Date (ithe “Pre-Increase Revolver Lenders”) shall rank pari passu assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post- Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) participation interests in the case Letters of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence Credit on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Increase Date as shall be necessary for the Administrative Agent in order that, after giving effect to comply 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 “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Acttheir Pro Rata Share after giving effect to such increased Revolver Commitments.
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Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall have make, obtain or increase the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“their Incremental Term Loans”Loans or Revolving Commitments, as applicable, by executing and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice delivering to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Agents an Increased Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans Activation Notice specifying (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (Ai) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment increase and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term LoansFacility or Facilities involved, (ii) shall be equally the applicable Increased Facility Closing Date and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the applicable Incremental Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to amortization schedule for such Incremental Term Loans, which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier datecomply with Section 2.3(c), and (z) the Applicable Margin for such Incremental Term Loans; provided, that (i) the interest rate margins with respect to any Incremental Term Loans shall not be greater than the interest rate with respect to any Incremental Term Loans that have customary terms for senior secured term A loans (an “Incremental Term A Facility”) as determined by the board of directors of the Borrower in good faith based on the expected lenders, amortization, tenor and other material terms of such Incremental Term Loans, shall not be greater than the interest rate with respect to any Tranche A Term Loans plus 0.50% per annum unless the interest rate applicable to all Tranche A Term Loans is increased so that the interest rate applicable to the Incremental Term A Facility does not exceed the interest rate applicable to all Tranche A Term Loans by more than 0.50% per annum; provided that in determining the applicable interest rates applicable to loans and/or commitments incurred pursuant to each of the Incremental Term Loans, the Tranche A Term Loans, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the Lenders of the Tranche A Term Loans or the Incremental Term Facility, in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), but in each case, exclusive of any arrangement, structuring or other fees payable in connection with such Incremental Term Loans and (y) if the Incremental Term Facility includes an interest rate floor different than any interest rate floor applicable to the Term A Loans, such difference shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin under the Tranche A Term Loans, shall be required, (ii) after giving pro forma effect to the incurrence of Indebtedness on such Increased Facility Activation Date (assuming any increase in commitments under the Revolving Facility were fully drawn), the Borrower shall be in compliance with the covenants set forth in Section 7.1 recomputed as of the last day of the most recently ended four quarters period, (iii) the weighted average life to maturity of any Incremental Term Facility shall be not shorter than the then remaining weighted average life to maturity of the Tranche A Term Loans and (iv) the Administrative Agent shall have received each of such legal opinions, board resolutions, officers’ certificates, reaffirmation agreements and other documentation as it shall reasonably request. Notwithstanding the followingforegoing, in form and substance satisfactory to the Administrative Agent: (i) if the aggregate amount of borrowings of Incremental Term Loans and the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not previously delivered exceed the difference between (A) the Maximum Incremental Amount and (B) the cumulative amount of Indebtedness incurred pursuant to Section 7.2(k) and (ii) without the consent of the Administrative Agent, copies certified by the Secretary or Assistant Secretary (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $50,000,000 and (Ay) all corporate, partnership, member or other necessary action taken no more than 5 Increased Facility Closing Dates may be selected by the Borrower after the Closing Date. No Lender shall have any obligation to authorize such Incremental Facility and participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(Bb) all corporateAny additional bank, partnership, member financial institution or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrowerentity which, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors theretoBorrower and the Administrative Agent (which consent shall not be unreasonably withheld; provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of an Incremental Term Loan to a Lender, an affiliate of a Lender or an Approved Fund) may elect to become a “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (iiieach, a “New Lender Supplement”), substantially in the form of Exhibit I-3, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the Revolving Facility, the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an opinion amount determined by reference to the amount of counsel 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 then outstanding 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 Guarantorsrelevant 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 addressed to terms of the Incremental Term Loans evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by with the Borrower, payable ’s consent (not to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1be unreasonably withheld) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide furnished 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 Laws, including without limitation, the Patriot Actparties hereto.
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Incremental Facilities. The Subject to the terms and conditions set forth herein, the Borrower shall have the right right, at any time, to request increases incur additional Indebtedness under this Agreement in the an aggregate amount of up to $125,000,000 (the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice which may be borrowed in the form of one increase to the Term Loan. The following terms and conditions shall apply to the Incremental Facility: (i) the terms and conditions of the Incremental Facility shall be reasonably satisfactory to the Administrative AgentAgent and the Incremental Facility Lenders (as such term is defined below), which notice (ii) the Incremental Facility shall constitute a Credit Party Obligation, (iii) the Incremental Facility shall have the same terms (including interest rate and Maturity Date) as the Term Loan, unless the Incremental Facility Lenders otherwise agree to any terms less favorable to the Incremental Facility Lenders than the terms of the Term Loan, (iv) the Incremental Facility shall be irrevocable once given; providedentitled to the same voting rights as the existing Term Loan, howevershall vote with the Term Loan and shall be entitled to receive proceeds of prepayments on the same basis as the existing Term Loan, that after giving effect to any such (v) the Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the obtained from existing Lenders and/or or from other banks, financial institutions and other institutional lenders or investment funds, in each case in accordance with the terms set forth below (such Persons being referred to herein as the “Incremental Facility Lenders”), (vi) the proceeds of the Incremental Facility will be used to repay the Convertible Senior Notes with any excess to be approached available to pay any fees and expenses associated therewith, working capital and general corporate requirements of the Credit Parties and their Subsidiaries, (vii) the Borrower shall execute such promissory notes as are necessary and requested by the Incremental Facility Lenders to reflect the Incremental Facility, (viii) the Borrower shall pledge additional Collateral in an amount necessary to comply with respect to such increase or Incremental Term Loans Section 5.12(a) and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available terms satisfactory to the Administrative Agent for to secure the account of such other LendersIncremental Facility, in same day funds, an amount equal to (Aix) the portion conditions to Extensions of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Credit in Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties 4.1 shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), satisfied and (zx) the Administrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, in each of the following, case in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered , demonstrating that, after giving effect to the Incremental Facility, the Borrower will be in compliance with the financial covenant set forth in Section 5.9. Participation in the Incremental Facility shall be offered first to each of the existing Lenders on a pro rata basis, but none of such Lenders shall have any obligation to provide all or any portion of any the Incremental Facility. If the amount of the Incremental Facility requested by the Borrower shall exceed the commitments which the existing Lenders are willing to provide with respect to the Incremental Facility, then the Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent, copies certified by Agent to join this Credit Agreement as Lenders hereunder for the Secretary or Assistant Secretary portion of (A) all corporate, partnership, member or other necessary action the Incremental Facility not taken by the Borrower existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement give effect thereto as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as Borrower may reasonably requested by request. Notwithstanding any provision of this Credit Agreement to the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrowercontrary, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent is authorized, to enter into, on behalf of all Lenders, any amendment, modification or supplement to this Credit Agreement or any other Credit Document as may reasonably request and (2) in be necessary to incorporate the case of any Lender that is organized under the laws of a jurisdiction outside terms of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information Incremental Facility as shall be necessary for the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Actdescribed hereinabove.
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Incremental Facilities. (a) The Borrower shall have the right may, elect to request the establishment of one or more additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”) by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Term Loan Commitments obtained on or prior to such date) which may be Incurred in Dollars, Euros or Pounds Sterling. The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Term Loan -88- US-DOCS\118329784.▇▇▇▇▇▇▇▇▇▇.6
(b) [Reserved].
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the then existing Initial Term Loans as calculated without giving effect to any prepayments made in connection with the Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any broadly syndicated New Term Loan Incurred pursuant to clause (i) of the definition of Maximum Incremental Facilities Amount that matures earlier than the date that is two years after the Initial Term Loan Maturity Date, only during the period commencing on the Closing Date and ending on the date that is six months after the Closing Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans of the same currency by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans of the same currency shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans of the same currency is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50%; provided that, any amendments to the applicable margin on the Initial Term Loans that became effective subsequent to the Restatement Effective Date but prior to the time of such New Term Loans shall be included in the calculation of the Effective Yield (the terms of this proviso to this clause (iii), the “MFN Protection”); and (iv) to the extent such terms and documentation are not consistent with the then -89- US-DOCS\118329784.▇▇▇▇▇▇▇▇▇▇.6
(e) [Reserved].
(f) 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 opinion of the Administrative Agent, to effect the provision of this Section 2.14. (g)
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of the Revolving Commitments or the making of incremental term loans hereunder such Term Loans (any such Term Loans which have been so converted, “Incremental Extended Term Loans”, ) and to provide for other terms consistent with this Section 2.14(g). In order to establish any such increase or Incremental Extended Term Loans, an “Incremental Facility”) by providing written the Borrower shall provide a notice to the Administrative AgentAgent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which notice shall not be irrevocable once givenmaterially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that after giving effect to (x) the scheduled final maturity date shall be extended and all or any such Incremental Facility the aggregate amount of the sum scheduled amortization payments of principal of the Revolving Commitments plus the principal amount of Extended Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation may be delayed to later dates than the scheduled amortization of any increase between principal of the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Existing Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection Loan Class (with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject delay resulting in a corresponding adjustment to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case of an existing Lendermay be, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of Existing Term Loan Class from which such other LendersExtended Term Loans were converted, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and each case as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu more particularly set forth in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and paragraph (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under of this Section is subject to the following conditions precedent: (x2.14(g) no Default or Event of Default shall be in existence on the effective date of such increasebelow), (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 1 contract
Incremental Facilities. The Borrower (a) At any time during the period from and after the Closing Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Revolver Increase Amount (each such increase, an “Increase”). Agent shall have 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 right interest margin proposed by Borrowers, and if sufficient Lenders do not agree to request increases increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than 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 Revolving Increases to the Revolver Commitments exceed $15,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount:
(i) Agent or Borrowers have obtained the making commitment of incremental term loans hereunder one or more Lenders (“Incremental Term Loans”, or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such increase Lenders (or Incremental Term Loansprospective lenders), Borrowers, and Agent have signed a joinder agreement to this Agreement (an “Incremental FacilityIncrease 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, and
(iv) 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 date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount (such date being the “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 Documents as may be necessary to effectuate the provisions of this Section 2.14.
(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”) by providing written notice shall assign to any Lender which is acquiring a new or additional Revolver Commitment on the Administrative AgentIncrease Date (the “Post-Increase Revolver Lenders”), which notice and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Revolving Loans and participation interests in Letters of Credit on such Increase Date as shall be irrevocable once given; providednecessary in order that, however, that after giving effect to any all such Incremental Facility the aggregate amount assignments and purchases, such Revolving Loans and participation interests in Letters of the sum of the 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 Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) , Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall not exceed $650,000,000. The allocation of any increase between the constitute Revolving Commitments Loans, Revolver Commitments, and Incremental Term Loans Maximum Revolver Amount under, and shall be made at entitled to all the time Borrower requests such increasebenefits 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. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 Borrowers shall take any actions reasonably required by Agent to ensure and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with demonstrate that the Borrower, shall manage all aspects of Liens and security interests granted by the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders Loan Documents continue to be approached with respect to such increase perfected under the Code or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and otherwise after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment establishment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment new Revolver Commitments and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17Maximum Revolver Amount., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 1 contract
Incremental Facilities. The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day LEGAL 4867-4266-3982v.3 funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Credit Agreement (NETSTREIT Corp.)
Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments Company may on one or the making of incremental term loans hereunder (“Incremental Term Loans”more occasions, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once givenrequest the establishment of Incremental Revolving Commitments; provided, however, provided that after giving effect to any such Incremental Facility the aggregate amount of all the sum of the Incremental Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) established hereunder shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increaseUS$500,000,000. Each such notice shall specify (1) the date on which the Company proposes that the Incremental Facility must Revolving Commitments shall be an aggregate minimum 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 (2) the amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangersthe Incremental Revolving Commitments being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment may elect or decline, in consultation with the Borrowerits sole discretion, shall manage all aspects of the syndication of to provide such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide and (y) any Person that the Company proposes to become an Incremental Revolving Lender, if such Person is not then a new Revolving Commitment or Incremental Term LoansLender, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, and must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available reasonably acceptable to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to and each Issuing Bank).
(Ab) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued The terms and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment conditions of any such Revolving Loans. Revolving Loans made pursuant to any increased Incremental Revolving Commitment and the Incremental Term Loans and other extensions of credit to be made thereunder shall be identical to those of, and shall be treated as part of (i) shall rank pari passu in right of payment with and not separate from), the Revolving Commitments and the Revolving Loans and Term Loans, other extensions of credit made thereunder.
(iic) The Incremental Revolving Commitments shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization effected pursuant to one or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to Agreements executed and delivered by the following conditions precedent: Company, each Incremental Revolving Lender providing such Incremental Revolving Commitments and the Administrative Agent; provided that no Incremental Revolving Commitments shall become effective unless (xi) no Default or Event of Default shall have occurred and be in existence continuing on the effective date of effectiveness thereof, both immediately prior to and immediately after giving effect to such increaseIncremental Revolving Commitments and the making of any Loans thereunder to be made on such date, (yii) on the date of effectiveness thereof, the representations and warranties made or deemed made by of the Borrower and any other Borrowers set forth in the Loan Party in any Loan Document to which such Loan Party is a party 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 (respects, in each case on and as of such date of effectiveness, except in the case of a any such representation or warranty qualified by materiality or Material Adverse Effectthat expressly relates to a prior date, in which case such representation or warranty shall be so true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier prior date, (iii) after giving effect to such Incremental Revolving Commitments (and assuming the making of Loans thereunder in the full amount thereof), the Company shall be in pro forma compliance with the financial covenants set forth in Section 6.07 as of the end of the most recent fiscal quarter for which financial statements shall have been delivered under Section 5.01(a) or 5.01(b), (iv) the Borrowers shall make any payments required to be made pursuant to Section 2.13 in connection with such Incremental Revolving Commitments and the related transactions under this Section and (zv) 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 have been reasonably be requested by the Administrative Agent in connection with any such transaction.
(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” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and under the other Loan Documents and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents and (ii) (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the Revolving Commitment of such Incremental Revolving Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each case, subject to further increase or reduction from time to time as provided herein. 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 received each made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in amounts and currencies equal to the amount and currencies of the following, Existing Revolving Borrowings and of the Types and for the Interest Periods specified in form and substance satisfactory to the Administrative Agent: (i) if not previously a Borrowing Request delivered to the Administrative AgentAgent in accordance with Section 2.03 (and the Company shall, copies certified by 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 Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty effectiveness of such Incremental Facility; Revolving Commitments) and (iivii) a supplement 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 this Agreement executed clause (i) above shall be subject to compensation by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel Borrowers pursuant to the Borrower and provisions of Section 2.13 if the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time date of the effectiveness of such Incremental Revolving Commitments occurs other than on the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto last day of the Interest Period relating thereto.
(f) The Administrative Agent shall (1) execute such documents and agreements as notify the Lenders promptly upon receipt by the Administrative Agent may reasonably request of any notice from the Company referred to in paragraph (a) of this Section and (2) of the effectiveness of any Incremental Revolving Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Lender that is organized under the laws of a jurisdiction outside Incremental Revolving Commitments, of the United States Applicable Percentages 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 Laws, including without limitation, the Patriot ActRevolving Lenders after giving effect thereto.
Appears in 1 contract
Sources: Credit Agreement (Trimble Inc.)
Incremental Facilities. The Borrower shall have (a) At any time from and after the right Closing Date, at the option of Borrowers (but subject to request increases the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate amount for all such increases of the Revolving Revolver Commitments or and the making of incremental term loans hereunder Maximum Revolver Amount not to exceed the Available Increase Amount (“Incremental Term Loans”, and any each such increase or Incremental Term Loansincrease, an “Incremental FacilityIncrease”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given); provided, howeverthat in no event shall the Revolver Commitments and the Maximum Revolver Amount be increased by an amount in excess of the Available Revolver Increase Amount. Agent shall invite each Lender to increase its Revolver Commitments (it being understood that no Lender shall be obligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, that after giving effect 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 such Incremental Facility the aggregate 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 the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed at least $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 5,000,000 and integral multiples of $5,000,000 in excess thereof. The ArrangersIn no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than 3 occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in consultation with no event shall the Borrower, shall manage all aspects aggregate amount of the syndication of such Incremental Facilities, including decisions as Increases to the selection Revolver Commitments exceed $25,000,000.
(b) Each of the existing Lenders and/or other banks, financial institutions and other institutional lenders following shall be conditions precedent to be approached with respect to such increase or Incremental Term Loans any Increase of the Revolver Commitments and the allocations thereof among Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such existing Lenders and/or other banks(or prospective lenders), financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party 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 such requested increase must be an Eligible Assignee andIncrease, 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 new Lender is assuming Revolving Commitmentsother documentation as Agent shall reasonably request, must be subject in order to the consent of each Issuing Bank enable Agent and the Swingline Lender. If a new Lender becomes a party Lenders to this Agreementcomply with any of the requirements under Regulations T, U or if any existing Lender is increasing its Revolving Commitment, such Lender shall on X of the date it becomes a Lender hereunder Federal Reserve Board,
(or in the case of an existing Lender, increases its Revolving Commitmentiv) Borrowers have delivered to Agent updated pro forma Projections (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of Revolving Commitmentsthe applicable Increase and
(v) of any outstanding Revolving Loans, by making available Borrowers shall have reached agreement with the Lenders (or prospective lenders) agreeing to the Administrative Agent for increased Revolver Commitments with respect to the account of such other Lenders, in same day funds, an amount equal interest margins applicable to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay pursuant to the Revolving Lenders amounts payable, if any, increased Revolver Commitments (which interest margins may be with respect to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any the increased Revolving Commitment and Revolver Commitments, higher than or equal to the Incremental Term Loans (i) shall rank pari passu in right of payment with the interest margins applicable to Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) set forth in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid this Agreement immediately prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, the increased Revolver Commitments (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount, the “Increase Date”)) and shall have communicated the amount of such interest margins to Agent. 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 Documents as may be necessary to effectuate the provisions of this Section 2.14 (including any amendment necessary to effectuate the interest margins for the Revolving Loans to be made pursuant to the increased Revolver Commitments). Anything to the contrary contained herein notwithstanding, if the all-in yield (including interest margins, interest floors, and any original issue discount or similar yield-related discounts or payments, but excluding any arrangement, underwriting, or similar fees payable in connection therewith that are not paid to all Lenders providing the Increase to the Revolver Commitment) that is to be applicable Incremental Facility. In to the Revolving Loans to be made pursuant to the increased Revolver Commitments is higher than the all-in yield (including interest margins, interest floors, and any original issue discount or similar yield-related discounts or payments, but excluding any arrangement, underwriting, or similar fees payable in connection with therewith that are not paid to all Lenders providing the Increase to the Revolver Commitment) applicable to the Revolving Loans immediately prior to the applicable Increase Date (the amount by which all-in yield is higher, the “Excess”), then the interest margin applicable to the Revolving Loans immediately prior to the Increase Date shall be increased by the amount of the Excess, effective on the applicable Increase Date, and without the necessity of any Incremental Facilityaction by any party hereto.
(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 becoming which is acquiring a party hereto new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall (1) execute purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such documents and agreements as the Administrative Agent may reasonably request and (2) interests in the case Revolving Loans and participation interests in Letters of any 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 Credit on such other information Increase Date as shall be necessary for 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 Administrative 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 comply with “know your customer” ensure and Anti-Money Laundering Laws, including without limitation, demonstrate that the Patriot ActLiens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
Appears in 1 contract
Sources: Credit Agreement (Neophotonics Corp)
Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) may by providing written notice to the Administrative AgentAgent elect to request (i) prior to the Maturity Date of the Revolving Credit Facility and prior to any Increased Amount Date with respect to the Revolving Credit Facility, to replace the Revolving Credit Facility with one or more new revolving credit commitments (the “Replacement Revolving Credit Commitments”), (ii) prior to the Maturity Date of the applicable Revolving Credit Facility, one or more increases to the Revolving Credit Commitments (any such increase in commitments, the “Incremental Revolving Credit Commitments”) and/or (iii) prior to the Maturity Date of the Term B Loan Facility, the establishment of one or more new term loan commitments (the “New Term Commitments” and, together with the Replacement Revolving Credit Commitments and the Incremental Revolving Credit Commitments, the “Incremental Commitments”) which notice may be of the same Class as existing Term Loans or a separate Class of new term loans; provided that, (x) the aggregate principal amount of all Replacement Revolving Credit Commitments shall be irrevocable once given; providednot exceed $175,000,000, however(y) (A) the aggregate principal amount of all such Incremental Revolving Credit Commitments and New Term Commitments shall not exceed $125,000,000, that plus (B) after the full utilization of the amounts available under clause (A) above, an additional amount of Incremental Revolving Credit Commitments and/or New Term Commitments so long as in the case of this clause (B), the Senior Secured Leverage Ratio shall not exceed 3.50:1.00 as of the end of the Test Period most recently ended, both before and after giving Pro Forma Effect to such Incremental Revolving Credit Commitments or New Term Loans (assuming a borrowing of the maximum amount of Loans available under the Revolving Credit Commitments and any Incremental Revolving Credit Commitments after giving effect to such Incremental Revolving Credit Commitment and any Incremental Revolving Credit Commitments previously made pursuant to this Section 2.14 and excluding, for purposes of determining Consolidated Senior Secured Debt, the cash proceeds from the borrowing of the proposed Incremental Revolving Credit Commitments or New Term Loans) and (z) any such Incremental Facility the request shall be for an aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans Incremental Commitments that is not less than $5,000,000 (including any or such lesser amount which shall be approved by Administrative Agent or such lesser amount that shall constitute the difference between the maximum aggregate principal amount of Incremental Commitments indicated above and all such Incremental Term LoansCommitments obtained prior to such date) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereofof that amount. The ArrangersEach such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the applicable Incremental Commitments shall be effective, which shall be a date not less than fifteen (15) 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 (ii) the identity of each Lender or other Person that is an Eligible Assignee (each, a “New Revolving Credit Lender” or “New Term Lender”, as applicable) to whom the Borrower proposes any portion of such Replacement Revolving Credit Commitments, Incremental Revolving Credit Commitments or New Term Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Borrower shall first approach each existing Lender to provide any Incremental Commitment, which Lender may elect or decline, in consultation with its sole discretion, to provide all or any portion of such requested Incremental Commitment. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that, (1) no Default or Event of Default shall have occurred and be continuing on such Increased Amount Date before or after giving effect to such Incremental Commitments; (2) after giving effect to the making of any New Term Loans or effectiveness of any Replacement Revolving Credit Commitments or Incremental Revolving Credit Commitments, each of the conditions set forth in Section 4.02 shall be satisfied; (3) the Replacement Revolving Credit Commitments, Incremental Revolving Credit Commitments or New Term Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and Administrative Agent, and each of which shall manage all aspects of be recorded in the syndication of such Incremental FacilitiesRegister, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental each New Revolving Credit Lender and New Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated subject to the requirements set forth in Section 10.15; (4) the Borrower shall make any way whatsoever payments required pursuant to increase its Revolving Commitment Section 3.05 in connection with the Incremental Commitments, if applicable; and (5) the Borrower shall deliver or provide a new Revolving Commitment cause to be delivered any customary legal opinions or Incremental Term Loans, and any new Lender becoming a party to this Agreement other documents reasonably requested by Administrative Agent in connection with any such requested transaction.
(b) On any Increased Amount Date on which Incremental Revolving Credit Commitments are effected through an increase must be an Eligible Assignee and, if such new Lender is assuming to the existing Revolving Credit Commitments, must be subject to the consent satisfaction of the foregoing terms and conditions, (a) each Issuing Bank of the Revolving Credit Lenders shall assign to each of the New Revolving Credit Lenders, and each of the Swingline Lender. If a new Lender becomes a party to this AgreementNew Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, or if any existing Lender is increasing its Revolving Commitmentat the principal amount thereof, such Lender shall on the date it becomes a Lender hereunder (or interests in the case of an 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 Lender, increases its Revolving Commitment) (Credit Lenders and as a condition thereto) purchase from the other New Revolving Credit Lenders its ratably in accordance with their Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Credit Commitments and after giving effect to the increase 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 New 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 borrowing and prepayment requirements in Section 2.02 and 2.05(a) of any outstanding this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(c) Any Replacement Revolving LoansCredit Commitments shall be effective on a single Increased Amount Date (the “Replacement Revolver Date”) and no Replacement Revolving Credit Commitments may be incurred after the Replacement Revolver Date. On the Replacement Revolver Date, by making subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender shall make its Replacement Revolving Credit Commitment available to the Administrative Agent for the account of such other LendersBorrower (when borrowed, in same day funds, an amount equal a “Replacement Revolving Loan”) and (ii) each New Revolving Credit Lender shall become a Lender hereunder with respect to (A) the portion of the outstanding principal amount of such its Replacement Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued Commitment and unpaid to and as of such date on such portion of the outstanding principal amount of such Replacement Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result terms and provisions of the prepayment of any Replacement Revolving Credit Commitments and the Replacement Revolving Loans shall be as agreed between the Borrower and the New Revolving Credit Lenders providing such Replacement Revolving Credit Commitments and Replacement Revolving Loans. Revolving Loans made pursuant , and except as otherwise set forth herein shall be reasonably satisfactory to any increased Revolving Commitment Administrative Agent, the L/C Issuer and the Incremental Term Loans Swing Line Lender. In any event:
(i) the existing Revolving Credit Commitments shall be terminated and the existing Revolving Loans shall be repaid as a condition to the Replacement Revolver Date and any Letters of Credit outstanding on the Replacement Revolver Date shall be deemed issued under the Replacement Revolving Credit Commitments;
(ii) the final maturity date of any Replacement Revolving Loans shall be no earlier than the original Maturity Date of the Revolving Credit Facility;
(iii) the Replacement Revolving Loans will rank pari passu in right of payment with the Term Loans and the liens securing the Replacement Revolving Loans will rank pari passu with the liens securing the existing Revolving Credit Loans;
(iv) the covenants and events of default applicable to the Replacement Revolving Credit Commitments and Replacement Revolving Loans shall be substantially identical to, or less favorable to the investors providing such Replacement Revolving Credit Commitments, than terms applicable to the Term LoansLoans at such time; provided, that notwithstanding the foregoing, there may be financial maintenance covenants applicable only to the Replacement Revolving Credit Commitments and Replacement Revolving Loans so long as an event of default with respect to the Term Loans would result from any acceleration of the Replacement Revolving Loans or termination of the Replacement Revolving Credit Commitments as a result of a breach of such covenant;
(v) the yield applicable to the Replacement Revolving Loans shall be determined by the Borrower and the applicable New Revolving Credit Lenders and shall be set forth in each applicable Joinder Agreement; and
(vi) all other material terms of the Replacement Revolving Credit Commitments and Replacement Revolving Loans shall be identical to the existing Revolving Credit Agreement on the Replacement Revolver Date.
(d) Any New Term Loans made pursuant to any New Term Commitments of a separate Class of term loans on an Increased Amount Date shall be designated a separate Class of New Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any Class are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such Class, and (ii) each New Term Lender of such Class shall be equally become a Lender hereunder with respect to the New Term Commitment of such Class and ratably secured with the Revolving New Term Loans of such Class made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to any existing Class of Term Loans and be treated as the same Class as such Term Loans, .
(iiie) 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 Class of New Term Commitments and the New Term Lenders of such Class and (ii) in the case of Incremental 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.
(f) The terms and provisions of the New Term Loans and New Term Commitments of any Class shall be as agreed between the Borrower and the New Term Lenders providing such New Term Loans and New Term Commitments, and except as otherwise set forth herein, to the extent not identical to the Term B Loans, shall be reasonably satisfactory to Administrative Agent. In any event:
(xi) the Weighted Average Life to Maturity of all New Term Loans of any Class shall not mature be no shorter than the Weighted Average Life to Maturity of the Term B Loans (except by virtue of amortization or prepayment of the Term B Loans prior to the time of such incurrence);
(ii) the Maturity Date of any Class of the New Term Loans shall be no earlier than the maturity of the Term B Loans;
(iii) the New Term Loans and (ywill share ratably in right of prepayment with the Term Loans pursuant to Section 2.05(b) shall have no amortization or otherwise as contemplated by clause (g) of this Section 2.14 below; provided that the New Term Loans may be permitted to be prepaid prior afforded lesser payments to the extent the Lenders providing such New Term Loan Maturity Date, and Loans so agree; and
(iv) the yield applicable to the New Term Loans of each Class shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made determined by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party the applicable new Lenders and shall be true and correct set forth in each applicable Joinder Agreement; provided, however, that the yield applicable to such New Term Loans (after giving effect to all material respects (except in upfront or similar fees, original issue discount payable or interest rate floors with respect to such New Term Loans) shall not be greater than the case applicable interest rate payable pursuant to the terms of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on this Agreement as amended through the effective date of such increase except calculation with respect to Term B Loans (including any upfront or similar fees or original issue discount paid and payable to the extent that initial Lenders hereunder), plus 0.50% per annum unless the interest rate with respect to the Term B Loan is increased so as to cause the then applicable interest rate under this Agreement on the Term B Loans (including any upfront or similar fees or original issue discount paid and payable to the initial Lenders hereunder and the adjustment of any interest rate floor) to equal the yield then applicable to the New Term Loans (after giving effect to all upfront or similar fees, original issue discount payable or interest rate floors with respect to such representations and warranties expressly relate solely New Term Loans) minus 0.50%; provided that, customary arrangement or commitment fees payable to an earlier date the arrangers of such New Term Loans (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty their respective affiliates) under this Section 2.14 shall be true and correct in all respectsexcluded.
(g) on and as Each Joinder Agreement may, without the consent of such earlier date)any other Lenders, and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include effect such amendments to this agreement Agreement and the other Loan Documents as the Administrative Agent deems reasonably may be necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17.appropriate, together with in the consent of the Guarantors thereto; (iii) an reasonable opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested Borrower to effect the provision of this Section 2.14, and for the avoidance of doubt, this Section 2.14 shall supersede any provisions in Section 10.01 to the contrary.
(h) The Loans and Commitments extended or established pursuant to this paragraph 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 from the Guarantees and security interests created by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot ActCollateral Documents.
Appears in 1 contract
Incremental Facilities. The (a) Subject to the conditions set forth in clause (f) below, the Borrower may at any time or from time to time after the Amendment Effective Date, by written notice to the Administrative Agent (whereupon the Administrative Agent shall have the right promptly deliver a copy to request increases in the aggregate amount each of the Revolving Commitments Lenders), request (i) one or the making more tranches of incremental additional term loans hereunder or an increase in any Class of Term Loans (“Incremental Term Loans”) under one or more additional term facilities or an increase thereof (the “Incremental Term Facility”), (ii) one or more increases in the total amount of the Revolving Credit Commitments (the “Additional Revolving Facility Commitments”) under the Revolving Facility, provided that such Additional Revolving Facility Commitments shall be on the same terms as the existing Revolving Credit Commitments and in all respects shall become part of the Revolving Facility hereunder, or (iii) one or more new revolving credit commitments (the “Incremental Revolving Facility Commitments” and together with any Additional Revolving Facility Commitments, the “Incremental Revolving Credit Commitments”) under one or more additional revolving credit facilities (the “Incremental Revolving Facility” and together with any Incremental Term Facility, the “Incremental Facilities”). Notwithstanding anything to the contrary herein, the sum of (i) the aggregate principal amount of the Additional Revolving Facility Commitments, (ii) the aggregate principal amount of the Incremental Revolving Facility Commitments and (iii) the aggregate principal amount of all Incremental Term Loan Facilities incurred after the Amendment Effective Date shall not exceed (i) $100,000,000 plus (ii) additional amounts so long as the Senior Secured Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended four fiscal quarter period for which the Borrower has delivered financial statements pursuant to Section 6.01, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, had been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) excluding cash proceeds of any such increase Incremental Term Loans or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; Revolving Credit Commitment (provided, however, that after giving effect to any repayment of Indebtedness with any such proceeds shall be given pro forma effect thereto), does not exceed 2.25:1.00 (the “Incremental Cap”). Each Additional Revolving Facility the aggregate amount of the sum of the Commitment and Incremental Revolving Commitments plus the Facility shall be in a minimum principal amount of Term Loans (including any $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $5,000,000 if such amount represents all the remaining availability under the Incremental Cap. Each Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans Facility shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate in a minimum principal amount of $25,000,000 and integral multiples of $5,000,000 1,000,000 in excess thereof. The Arrangers, in consultation with ; provided that such amount may be less than $25,000,000 if such amount represents all the Borrower, shall manage all aspects of remaining availability under the syndication of such Incremental Facilities, including decisions as to Cap; provided further that the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender Cap shall be obligated in reduced on a dollar-for-dollar basis by any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made Permitted Senior Notes issued pursuant to any increased Section 2.14(g).
(b) The Incremental Revolving Commitment and the Incremental Term Loans Facility (i) shall rank pari passu in right of payment and of security with the Revolving Loans and Term LoansFacility, (ii) shall be equally and ratably secured with mature no earlier than the then applicable Revolving Loans and Term LoansLoan Maturity Date, (iii) shall have pricing as agreed between the Borrower and such lenders providing such Incremental Revolving Credit Commitments (the “Incremental Revolving Lenders”); provided that the pricing in respect thereof shall be consistent with then prevailing market rates, (iv) if the case All-In-Yield related to any Incremental Revolving Facility exceeds the All-In-Yield relating to the Revolving Loan immediately prior to the effectiveness of the applicable Incremental Revolving Facility by more than 0.50% per annum, the Applicable Rate relating to the Revolving Loans shall be adjusted to be at least equal to the All-In-Yield relating to such Incremental Revolving Facility minus 0.50% per annum, (v) may provide for a new Letter of Credit sublimit to the extent approved in its sole discretion by such L/C Issuer (who may be the existing L/C Issuers) (an “Incremental L/C Issuer”) that has agreed to provide a new Letter of Credit commitment, (vi) may provide for a new Swing Line sublimit to the extent approved in its sole discretion by the swing line lender (who may be the existing Swing Line Lender) that has agreed to provide such incremental swing line commitment (an “Incremental Swing Line Lender”) and (vii) shall otherwise have the same terms as the existing Revolving Facility.
(c) The Incremental Term LoansFacility (i) shall rank pari passu in right of payment and of security with the Revolving Facility, (xii) shall have pricing as agreed between the Borrower and such lenders (the “Incremental Term Lenders” and together with the Incremental Revolving Lenders and any Lender or Additional Lender providing Additional Revolving Facility Commitments, the “Incremental Lenders”) providing commitments in respect of such Incremental Term Loans (the “Incremental Term Loan Commitments”); provided that the pricing in respect thereof shall be consistent with then prevailing market rates, and provided, further that if the All-In-Yield related to any Incremental Term Facility incurred within 18 months of the Amendment Effective Date exceeds the All-In-Yield relating to the Term Loans immediately prior to the effectiveness of the applicable Incremental Term Facility by more than 0.50% per annum, the Applicable Rate relating to the Term Loans shall be adjusted to be at least equal to the All-In-Yield relating to such Incremental Term Facility minus 0.50% per annum, (iii) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the then applicable Term Loan Maturity Date, and (iv) the Weighted Average Life to Maturity of such Incremental Term Loans shall be treated substantially no shorter than the same remaining average life to maturity of the Term Facility, (and in any event not more favorably thanv) the Revolving Loans. Effecting any maturity date of the Incremental Term Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on no earlier than the effective date Term Loan Maturity Date and (vi) all other terms of such increaseIncremental Term Loans, if not consistent with the terms of the existing Term Facility, (yA) the representations and warranties made or deemed made by will be as agreed between the Borrower and any other Loan Party in any Loan Document to which the Incremental Term Lenders providing such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), Incremental Term Loans and (zB) shall not be more restrictive than the Administrative Agent shall have received each terms of the following, in form and substance Term Facility unless reasonably satisfactory to the Administrative Agent: .
(id) Each written notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount, proposed terms of the relevant Incremental Term Loans or Incremental Revolving Facility and the proposed effective date for the making of such Incremental Facility or increase in the Revolving Facility (the “Incremental Effective Date”). Incremental Term Loans may be made, and Incremental Revolving Credit Commitments and Additional Revolving Facility Commitments may be provided, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Term Loan or of any Incremental Revolving Credit Commitments or Additional Revolving Facility Commitments) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that (x) the Borrower shall first request any such Incremental Term Loan, Incremental Revolving Credit Commitments or Additional Revolving Facility Commitments from the existing Lenders prior to soliciting commitments from Additional Lenders (which existing Lender shall be presumed to have declined such request if it has not previously delivered affirmatively responded to or accepted such request within 5 Business Days from the date of such request) and (y) any such Additional Lenders shall be reasonably acceptable to the Administrative Agent. No existing Lender shall be obligated to provide any Incremental Term Loans, copies certified by the Secretary Incremental Revolving Credit Commitments or Assistant Secretary Additional Revolving Facility Commitments, unless it so agrees.
(e) Commitments in respect of Incremental Term Loans, Incremental Revolving Facility Commitments and or Additional Revolving Facility Commitments shall become Commitments under this Agreement pursuant to an amendment (Aan “Incremental Amendment”) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Incremental Lender, each Incremental L/C Issuer, if any, each Incremental Swing Line Lender, if any, and the Administrative Agent and Agent. The Incremental Amendment may, without the consent of any Lender providing such Incremental Facilityother Lenders, which supplement may include effect such amendments to this agreement Agreement and the other Loan Documents as may be necessary, including any amendments to the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17.Schedule I, together with in the consent of the Guarantors thereto; (iii) an reasonable opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in effect the amount provisions of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facilitythis Section 2.14. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute such documents and agreements as the The Administrative Agent may take any and all action as may be reasonably request necessary to ensure all Revolving Loans in respect of Additional Revolving Facility Commitments and (2) Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. The Borrower shall pay to the case of applicable Lender any Lender that is organized under the laws of a jurisdiction outside costs of the United States type referred in Section 3.05 in connection with the foregoing. The Borrower will use the proceeds of Americathe Incremental Term Loans, provide to the Administrative Agent, its name, address, tax identification number Incremental Revolving Credit Commitments and/or such Additional Revolving Facility Commitments for general corporate purposes or any other information as shall be necessary for the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Actpurpose not prohibited hereby.
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Incremental Facilities. The (i) For the avoidance of doubt and notwithstanding any provision to the contrary set forth in this Agreement or any other Loan Document, this Agreement may be amended (or amended and restated) at any time and from time to time to increase the Aggregate Revolving Commitments or to establish one or more additional separate tranches of term loans (each such increase to the Revolving Commitments and/or establishment of a new tranche term loans being referred to herein as an “Incremental Facility,” and all of such increases and establishments being referred to collectively as the “Incremental Facilities”) to be made to the Borrower by an agreement in writing entered into by the Borrower, the Administrative Agent and each Person (including any Lender) that shall have the right agree to request increases in the aggregate amount of provide any such increase to the Revolving Commitments or the making such separate tranches of incremental term loans hereunder (“Incremental Term Loans”but without the consent of any other Lender), and any each such increase or Incremental Term LoansPerson that shall not already be a Lender shall, an “Incremental Facility”) by providing written notice to at the Administrative Agenttime such agreement becomes effective, which notice shall be irrevocable once givenbecome a Lender with the same effect as if it had originally been a Lender under this Agreement with the Revolving Commitment and/or term loan set forth in such agreement; provided, however, that after giving effect to any such Incremental Facility that: (A) without the consent of the Required Lenders, the aggregate principal amount of the sum of increases in the Revolving Commitments plus and/or separate term loans effected after the principal amount of Term Loans (including any such Incremental Term LoansFourth Amendment Effective Date pursuant to this Section 11.01(b) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus 250,000,000; (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans exist at the time of the effectiveness amendment giving effect to any such increase in the Revolving Commitments and/or the making of a separate term loan, as applicable, becomes effective; and (C) no Lender shall be obligated to participate in any such increase by increasing its own commitment hereunder unless such Lender elects to do so in its sole discretion at the time of such increase. The terms applicable to any additional Revolving Commitments or term loans, as applicable, shall be the same as those applicable to the initial Revolving Commitments and Tranche B Term Loan, as applicable, (after giving effect to any amendment in connection with the establishment of such additional Revolving Commitments or term loans, as applicable), except in respect of pricing, amortization and maturity; provided, however, that (A) each such Incremental Facility structured as a separate term loan tranche may be provided the right to ratable (with the Tranche B Term Loan and each other Incremental Facility structured as a separate term loan tranche) prepayment in connection with any voluntary or mandatory prepayment, (B) no more than 20% of the initial principal amount of any Incremental Facility structured as a separate term loan tranche shall amortize (pursuant to schedule amortization) prior to the Maturity Date of the Tranche B Term Loan, and (C) the final maturity date of any Incremental Facility structured as a separate term loan tranche shall not occur prior to the Maturity Date of the Tranche B Term Loan or the final maturity date of any other then existing Incremental Facility structured as a separate term loan tranche.
(ii) Any such amendment (or amendment and restatement) effected pursuant to Section 11.01(b)(i) shall amend the provisions of this Agreement and the other Loan Documents to set forth the terms of each Incremental Facility established thereby (including the amount and the final maturity thereof, any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof (in each case subject to any applicable restrictions set forth in subsection (i) of this Section 11.01(b)) and to effect such other changes (including changes to the provisions of Section 11.01(a), Section 2.05 and the definition of “Required Lenders”) as the Borrower and the Administrative Agent shall deem necessary or advisable in connection with the establishment of any such Incremental Facility; provided, however, that no such agreement shall: (A) effect any change described in any of clauses (A), (B), (C), (F) and (G) of Section 11.01(a) without the consent of each Person required to consent to such change under such clause (it being agreed, however, that any increase in the Aggregate Revolving Commitments or establishment of any Incremental Facility consisting of a separate tranche of term loans will not, of itself, be deemed to effect any of the changes described in clauses (A), (B), (C), (F) and (G) of Section 11.01(a)(i), and that modifications to Section 2.12, Section 9.03 or the definition of “Required Lenders” or other provisions relating to voting provisions to provide the Persons providing the applicable Incremental FacilityFacility with the benefit of such provisions will not, by themselves, be deemed to effect any of the changes described in clauses (D) and (E) of Section 11.01(a)(i)), or (B) amend Article VII, VIII or IX in any manner that by its terms benefits one or more tranches, but not all tranches, of Loans or Commitments without the prior written consent of Lenders holding a majority in interest of the Revolving Commitments then existing, if the Lenders holding Revolving Commitments are not so benefited, and of Lenders holding a majority in interest of each separate tranche of term loans then existing and not so benefited, (it being agreed that no provision requiring the Borrower to prepay term loans of one or more Incremental Facilities with the proceeds of Dispositions, Involuntary Dispositions, Debt Issuances, Equity Issuances or with the proceeds of excess cash flow will be deemed to violate this clause). In connection with The loans, commitments and borrowings of any Incremental FacilityFacility established pursuant to this Section 11.01(b) shall constitute Loans, any Lender becoming a party hereto shall (1) execute such documents Commitments and agreements as the Administrative Agent may reasonably request Borrowings under, and (2) in the case of any 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 entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranty set forth in Article IV hereunder and the security interests and Liens created by the Collateral Documents, and the Borrower shall take any actions reasonably required by the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, ensure and/or demonstrate that the Patriot Actrequirements of this sentence are satisfied after the establishment of any such Incremental Facility.
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Incremental Facilities. The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase600,000,000. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase Incremental Facility must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline LenderAssignee. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term existing Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term existing Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than any Class of the Term Loans and existing Loans, (yiv) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan latest Maturity Date, and (ivv) shall be treated substantially the same (and in any event not more favorably than) the Revolving existing Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increaseIncremental Facility, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase Incremental Facility 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.;
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Incremental Facilities. The (a) Upon notice to the Administrative Agent (which shall promptly notify the Lenders) and subject to the terms and conditions of this Section 2.22, at any time after the Effective Date, the Borrower shall have may solicit the right existing Lenders or prospective lenders determined by the Borrower to request provide (x) increases in the aggregate amount of commitments to the Revolving Commitments Credit Facility (such increases, “Incremental Revolving Commitments”) and/or (y) incremental commitments consisting of one or the making more new tranches of incremental term loans hereunder (each, an “Incremental Term LoansFacility” and together with any Incremental Revolving Commitments, the “Incremental Facilities”) in an aggregate amount not to exceed $1,000,000,000, on terms agreed by the Borrower and the lender(s) providing the respective Incremental Facility (subject to the following clauses of this Section 2.22).
(b) Any such Incremental Facility shall be unsecured. Additionally,
(i) in the case of any Incremental Revolving Commitments, such Incremental Revolving Commitments shall be subject to the same terms and conditions (including pricing, interest rate margins, rate floors, fees and maturity) and pursuant to the same documentation as the Revolving Credit Facility,
(ii) in the case of an Incremental Term Facility, Incremental Term Loans to be made under such Incremental Term Facility shall be subject to the terms as determined by the Borrower and the lenders providing such Incremental Term Facility, provided that,
(A) the final stated maturity date for any such increase Incremental Term Loans may be no sooner than the Latest Maturity Date applicable to the Revolving Total Commitments,
(B) the amortization payments applicable to any Incremental Term Facility shall not exceed 10% per annum during the first four years or 35% for the first four years in the aggregate, and
(C) the mandatory prepayment provisions, covenants and events of default of such Incremental Term Loans, an “if not consistent with the terms of the Revolving Credit Facility (or, in the case of mandatory prepayment provisions, consistent with the terms of any then outstanding Incremental Term Facility), shall be reasonably satisfactory to the Administrative Agent (it being understood that covenants and events of default not materially more restrictive to the Borrower, when taken as a whole, than the terms of the Revolving Credit Facility, and any more-restrictive covenants and events of default if (1) Lenders under the Revolving Credit Facility also receive the benefit of such more restrictive terms or (2) any such provisions apply after the expiration date of the Revolving Credit Facility, are in each case reasonably satisfactory to the Administrative Agent); and
(iii) any Incremental Facilities shall not be guaranteed by any person other than a Loan Party under the Revolving Credit Facility.
(c) Existing Lenders may, but shall not be obligated to without their prior written consent, provide a commitment and/or make any loans pursuant to any Incremental Facility”, and nothing contained herein constitutes, or shall be deemed to constitute, a commitment with respect to any Incremental Facility. The use of proceeds of the Incremental Facilities will be as agreed by the Borrower and the lenders providing such Incremental Facility but not prohibited by the Loan Documents.
(d) by providing written The notice from the Borrower to the Administrative Agent delivered pursuant to Section 2.22(a) shall set forth the requested amount and proposed terms of the Incremental Facilities, which proposed terms shall not be inconsistent with the requirements of Section 2.22(b). At the time of the sending of such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days (or such shorter period acceptable to the Administrative Agent, which but no less than five Business Days) from the date of delivery of such notice shall to the Lenders). Incremental Facilities (or any portion thereof) may be irrevocable once given; provided, however, that after giving effect to provided by any existing Lender specified by the Borrower or by any other bank or financial institution (any such bank or other financial institution, an “Incremental Facility Lender”), provided that the aggregate amount Administrative Agent (and, in the case of the sum any Incremental Revolving Commitments in respect of the Revolving Commitments plus Credit Facility, each Issuing Bank) shall have consented (which consent shall not be unreasonably withheld or delayed) to such Lender’s or Incremental Lender’s, as the principal amount of Term Loans (including any case may be, providing such Incremental Term Loans) Facilities if such consent would be required under Section 9.04 for an assignment of Loans to such Lender or Incremental Lender, as the case may be. Any Lender not responding within such time period shall not exceed $650,000,000be deemed to have declined to provide any portion of such Incremental Facility. The allocation Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder.
(e) Incremental Facilities shall become effective, and commitments thereunder shall become Commitments (and in the case of any increase between Incremental Revolving Commitment in respect of the Revolving Commitments and Credit Facility to be provided by an existing Revolving Credit Lender, shall constitute an increase in such Revolving Credit Lender’s Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Term Loans shall be made at Facility Amendment”) to this Agreement and, as appropriate, the time Borrower requests such increase. Each other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Incremental Facility, if any, each Incremental Lender, if any, and the Administrative Agent. An Incremental Facility must Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be an aggregate minimum amount necessary or appropriate, in the reasonable opinion of $25,000,000 the Administrative Agent and integral multiples the Borrower, to effect the provisions of $5,000,000 this Section 2.22.
(f) If any Incremental Facilities are added in excess thereof. The Arrangersaccordance with this Section 2.22, the Borrower, in consultation with the BorrowerAdministrative Agent, shall manage all aspects of determine the syndication effective date (the “Incremental Commitments Effective Date”) and the final allocation of such Incremental Facilities, including decisions as to . The Administrative Agent shall promptly notify the selection Lenders of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to final allocation of such increase or Incremental Term Loans Facilities and the allocations thereof among such existing Lenders and/or other banksIncremental Commitments Effective Date.
(g) The effectiveness of any Incremental Facility Amendment shall, financial institutions and other institutional lenders. No unless otherwise agreed to by the Administrative Agent, each Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loansparty thereto, if any, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee andthe Incremental Lenders, if such new Lender is assuming Revolving Commitmentsany, must be subject to the consent satisfaction on the Incremental Commitments Effective Date of each Issuing Bank and of the Swingline Lender. If a new Lender becomes a party to this Agreement, following conditions:
(i) the Administrative Agent shall have received on or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect prior to the Lenders’ respective Revolving Incremental Commitments Effective Date each of the following, each dated the Incremental Commitments Effective Date unless otherwise indicated or agreed to by the Administrative Agent and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available each in form and substance reasonably satisfactory to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedentAgent: (x) the applicable Incremental Facility Amendment; (y) customary legal opinions; and (z) certified copies of resolutions of the board of directors of each Loan Party approving the execution, delivery and performance of the Incremental Facility Amendment; and
(ii) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the exists or would exist after giving effect thereto and all representations and warranties made or deemed made by of the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party under this Agreement shall be true and correct in all material respects immediately before and after giving effect thereto (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase except to the extent that such representations and warranties expressly relate solely specifically refer to an earlier date (date, in which case such representations and warranties they shall have been be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), provided that to the extent the proceeds of any Incremental Facility are being used to finance an acquisition or any other permitted investment, if so agreed by the Lenders providing such Incremental Facility, (x) the only representations and (z) warranties the making and accuracy of which will be a condition to such Incremental Facility or the effectiveness of such Incremental Facility Amendment will be limited to customary specified representations and customary specified acquisition agreement representations reasonably requested by the Administrative Agent shall have received each and (y) at the election of the followingBorrower, in form the certifications to be made by the Borrower with respect to financial covenant compliance and substance satisfactory the absence of an Event of Default may be subject to customary “SunGard” or other applicable “certain funds” conditionality provisions.
(h) On the Administrative Agent: Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing a portion of an Incremental Facility (i) if not previously delivered to shall become a Lender for all purposes of this Agreement and the Administrative Agent, copies certified by the Secretary or Assistant Secretary of other Loan Documents and (Aii) all corporate, partnership, member or other necessary action taken by the Borrower to authorize shall have a commitment under such Incremental Facility and which shall become a Commitment hereunder.
(Bi) all corporateUpon each establishment of Incremental Revolving Commitments pursuant to this Section 2.22, partnership, member or other necessary action taken by (i) each Guarantor authorizing Revolving Lender immediately prior to the guaranty effectiveness of such Incremental Facility; Revolving Commitments will automatically and without further act be deemed to have assigned to each existing Lender, if any, and each Incremental Lender, if any, in each case providing a portion of such Incremental Revolving Commitments (each an “Incremental Revolving Commitments Increase Lender”), and each such Incremental Revolving Commitments Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participation interests hereunder in outstanding Letters of Credit such that, after giving effect to the effectiveness of such Incremental Revolving Commitments and each such deemed assignment and assumption of participation interests, the percentage of the aggregate outstanding participation interests hereunder in Letters of Credit held by each Revolving Lender (including each such Incremental Revolving Commitments Increase Lender) will equal such Revolving Lender’s Applicable Revolving Percentage and (ii) a supplement to this Agreement executed by if, on the Borrowerdate of effectiveness of such Incremental Revolving Commitments, there are any Revolving Loans outstanding, the Administrative Agent and any the Borrower shall take those steps which they deem, by mutual agreement, necessary and appropriate to result in each Revolving Lender providing (including each Incremental Revolving Commitments Increase Lender) having a pro-rata share of the outstanding Revolving Loans based on each such Revolving Lender’s Applicable Revolving Percentage immediately after giving effect to such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Revolving Commitments. The Administrative Agent and the Lenders covering such matters as reasonably requested by hereby agree that the Administrative Agent; minimum borrowing, pro-rata borrowing and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable pro-rata payment requirements contained elsewhere in this Agreement shall not apply to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent transaction that may reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide be effected pursuant to the Administrative Agent, its name, address, tax identification number and/or such other information as immediately preceding sentence.
(j) The provisions of this Section 2.22 shall be necessary for supersede any provision of Section 2.19 or 9.02 to the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Actcontrary.
Appears in 1 contract
Sources: Credit Agreement (Huntington Ingalls Industries, Inc.)
Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may from time to time during the Construction Loan Availability Period agree that due to Additional Costs and Expenses of the Borrower, such Lenders shall have make or increase the right amount of their Loans (the “Incremental Loans”) by executing and delivering to request increases in the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such Incremental Loans, (ii) the proposed Increased Facility Closing Date, (iii) the applicable Incremental Term Maturity Date and (iv) the Applicable Margin for such Incremental Loans. Notwithstanding the foregoing, (i) without the consent of the Required Financing Parties, the aggregate amount of borrowings of Incremental Loans shall not exceed $75,000,000 and (ii) without the Revolving Commitments or the making consent of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice each increase effected pursuant to this paragraph shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate in a minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof15,000,000 or, if less, the remaining amount permitted to be borrowed under the proceeding clause (i). Increased Facility Closing Dates may be selected by the Borrower. The ArrangersLenders party hereto shall have a “right of first refusal” with respect to any proposed Incremental Facility exercisable during the fifteen (15) Business Day period commencing on the date the Borrower notifies the Administrative Agent that it intends to create an Incremental Facility, it being understood that that no Lender shall have any obligation to participate in consultation with any new Incremental Facility unless it agrees to do so in its sole discretion. The effectiveness of any Incremental Facility shall be subject to receipt by the BorrowerAdministrative Agent of (i) additional equity provided by the Founding Equity Investors in an amount not less than 30% of such Additional Costs and Expenses, shall manage all aspects (ii) a certificate of the syndication Independent Engineer certifying that such Additional Costs and Expenses are consistent and in accordance with Good Utility Practice and (iii) a certificate of the Borrower certifying that no Default or Event of Default has occurred and is continuing or would occur as a result of the effectiveness of such Incremental FacilitiesFacility.
(b) Any additional bank, including decisions as to financial institution or other entity which, with the selection consent of the existing Lenders and/or other banksAdministrative Agent (which consent shall not be unreasonably withheld), financial institutions and other institutional lenders elects to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide become a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to “Lender” under this Agreement in connection with any transaction described in Section 2.25(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit J, whereupon such requested increase must be an Eligible Assignee andbank, if such new financial institution or other entity (a “New Lender”) shall become a Lender is assuming Revolving Commitments, must be subject for all purposes and to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement, or if any existing . Each New Lender is increasing its Revolving Commitment, such Lender Supplement shall on specify the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness terms of the applicable Incremental Facility; provided that other than with respect to margin, pricing, or fees, the Incremental Loans shall have the same terms as the Construction Loans issued hereunder.
(c) 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 Loans evidenced thereby. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute Any such documents and agreements as deemed amendment may be effected in writing by the Administrative Agent may reasonably request with the Borrower’s consent (not to be unreasonably withheld) and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide furnished 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 Laws, including without limitation, the Patriot Actparties hereto.
Appears in 1 contract
Sources: Credit Agreement (InfraREIT, Inc.)
Incremental Facilities. The (a) At any time on or after the Funding Date, the Borrower Representative shall have the right to request increases in the aggregate amount of the Revolving aggregate Tranche A-1 Commitments or the making of incremental term loans hereunder (“Incremental Term LoansTranche A-1 Increase”), to request increases in the amount of the aggregate Tranche A-2 Commitments (“Incremental Tranche A-2 Increase”) or to add one or more new pari passu term loan tranches (“Incremental TL Tranches”, and any such increase or together with each Incremental Term LoansTranche A-1 Increase and Incremental Tranche A-2 Increase, an the “Incremental FacilityFacilities”) (or any combination of the foregoing) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) Facilities shall not exceed $650,000,000. The allocation of any increase between 400,000,000 in the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increaseaggregate. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 1,000,000 in excess thereofthereof and, with respect to any Incremental Tranche A-1 Increase or Incremental Tranche A-2 Increase, shall identify the applicable Tranche(s) to be increased. The ArrangersLead Arranger, in consultation with the BorrowerBorrower Representative, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof Facilities among such existing Lenders and/or other banks, financial institutions and other institutional lenders. Notwithstanding the foregoing, participation in all or any portion of such Incremental Facility may be offered by the Lead Arranger to any existing Lender in the applicable Tranche selected by the Borrower Representative or to any other bank, financial institution or other institutional lender selected by the Borrower Representative, subject to the approval of the Administrative Agent, in each case to the extent set forth in clause (v) of subsection (f) below. No Lender shall be obligated in any way whatsoever to increase any of its Revolving Commitment Commitments or to provide a new Revolving Commitment or any other Incremental Term LoansFacility, as applicable, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee, and any such Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline shall become a Lender. .
(b) If a new Lender becomes a party to this Agreement as a Tranche A-1 Lender pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and its counsel (a “New Lender Joinder Agreement”), or if any existing Tranche A-1 Lender is increasing its Revolving Tranche A-1 Commitment, such Lender shall on the date it becomes a Tranche A-1 Lender hereunder (or or, in the case of an existing Tranche A-1 Lender, increases its Revolving Commitment) Tranche A-1 Commitment (and as a condition thereto) purchase from the other Tranche A-1 Lenders its Revolving Tranche A-1 Commitment Percentage (determined with respect to the Tranche A-1 Lenders’ respective Revolving Tranche A-1 Commitments and after giving effect to the increase of Revolving Tranche A-1 Commitments) of any outstanding Revolving Tranche A-1 Loans, by making available to the Administrative Agent for the account of such other Tranche A-1 Lenders, in same day immediately available funds, an amount equal to the sum of (A) the portion of the outstanding principal amount Outstanding Amount of such Revolving Tranche A-1 Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.accrued
Appears in 1 contract
Incremental Facilities. The Borrower shall have (a) At any time, at the right option of Borrowers (but subject to request increases the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate amount for all such increases of the Revolving Revolver Commitments or and the making of incremental term loans hereunder Maximum Revolver Amount not to exceed the Available Increase Amount (“Incremental Term Loans”, and any each such increase or Incremental Term Loansincrease, an “Incremental FacilityIncrease”) by providing written notice ). Agent shall invite each Lender to the Administrative Agent, which notice increase its Revolver Commitments (it being understood that no Lender shall be irrevocable once given; providedobligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, howeverand if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, that after giving effect then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to any such Incremental Facility the aggregate Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed at least $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 5,000,000 and integral multiples of $5,000,000 in excess thereof. The ArrangersIn no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than one (1) occasion during any calendar quarter. Additionally, for the avoidance of doubt, it is understood and agreed that in consultation with no event shall the Borrower, shall manage all aspects aggregate amount of the syndication of such Incremental Facilities, including decisions as Increases to the selection Revolver Commitments exceed $50,000,000.
(b) Each of the existing Lenders and/or other banks, financial institutions and other institutional lenders following shall be conditions precedent to be approached with respect to such increase or Incremental Term Loans any Increase of the Revolver Commitments and the allocations thereof among Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such existing Lenders and/or other banks(or prospective lenders), financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party 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 such requested increase must be an Eligible Assignee andIncrease, 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 new Lender is assuming Revolving Commitmentsother documentation as Agent shall reasonably request, must be subject in order to the consent of each Issuing Bank enable Agent and the Swingline Lender. If a new Lender becomes a party Lenders to this Agreementcomply with any of the requirements under Regulations T, U or if any existing Lender is increasing its Revolving Commitment, such Lender shall on X of the date it becomes a Lender hereunder Federal Reserve Board,
(or in the case of an existing Lender, increases its Revolving Commitmentiv) Borrowers have delivered to Agent updated pro forma Projections (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of Revolving Commitmentsthe applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period), and
(v) of any outstanding Revolving Loans, by making available Borrowers shall have reached agreement with the Lenders (or prospective lenders) agreeing to the Administrative Agent for increased Revolver Commitments with respect to the account of such other Lenders, in same day funds, an amount equal interest margins applicable to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay pursuant to the Revolving Lenders amounts payable, if any, increased Revolver Commitments (which interest margins may be with respect to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any the increased Revolving Commitment and Revolver Commitments, higher than or equal to the Incremental Term Loans (i) shall rank pari passu in right of payment with the interest margins applicable to Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) set forth in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid this Agreement immediately prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, the increased Revolver Commitments (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facilityincreased Revolver Commitments and the Maximum Revolver Amount, the “Increase Date”)) and shall have communicated the amount of such interest margins to Agent. In connection 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 Documents as may be necessary to effectuate the provisions of this Section 2.14.
(c) Unless otherwise specifically provided herein, all references in this Agreement and any Incremental Facilityother 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 becoming which is acquiring a party hereto new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall (1) execute purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such documents and agreements as the Administrative Agent may reasonably request and (2) interests in the case Revolving Loans and participation interests in Letters of any 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 Credit on such other information Increase Date as shall be necessary for 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 Administrative 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 comply with “know your customer” ensure and Anti-Money Laundering Laws, including without limitation, demonstrate that the Patriot ActLiens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
Appears in 1 contract
Incremental Facilities. The Borrower (a) At any time during the period from and after the Closing Date through but excluding the date that is the four-year anniversary of the Closing Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). Agent shall have 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 right interest margin proposed by Borrowers, and if sufficient Lenders do not agree to request increases increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is an Eligible Transferee or otherwise reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than two occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Revolving Increases to the Revolver Commitments exceed $10,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount: (i) Agent or Borrowers have obtained the making commitment of incremental term loans hereunder one or more Lenders (“Incremental Term Loans”, or other prospective lenders who are Eligible Transferees or otherwise reasonably satisfactory to Agent and Borrowers) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such increase Lenders (or Incremental Term Loanssuch prospective lenders), an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party 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 such requested increase must be an Eligible Assignee andIncrease, 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 new Lender is assuming Revolving Commitmentsother documentation as Agent shall reasonably request, must be subject in order to the consent of each Issuing Bank enable Agent and the Swingline Lender. If a new Lender becomes a party Lenders to this Agreementcomply with any of the requirements under Regulations T, U or if any existing Lender is increasing its Revolving CommitmentX of the Federal Reserve Board of Governors, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitmentiv) Borrowers have delivered to Agent updated pro forma Projections (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitmentsapplicable Increase) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such Loan Parties and their Subsidiaries evidencing 92 125672876_9 151541717_6
(c) Unless otherwise specifically provided herein, (i) all references in this Agreement and any other Lenders, in same day funds, an amount equal Loan Document to (A) the portion of the outstanding principal amount of such Revolving Loans to shall be purchased by such Lenderdeemed, plus (B) unless the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if anycontext otherwise requires, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. include Revolving Loans made pursuant to any the increased Revolving Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14. (d) Each of the Lenders having a Revolver Commitment and prior to the Incremental Term Loans Increase Date (ithe “Pre-Increase Revolver Lenders”) shall rank pari passu assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) participation interests in the case Letters of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence Credit on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Increase Date as shall be necessary for the Administrative Agent in order that, after giving effect to comply 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 “know your customer” and Anti-Money Laundering Laws, including without limitation, the Patriot Acttheir Pro Rata Share after giving effect to such increased Revolver Commitments.
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Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that each Lender shall have (i) in the right case of any existing Lender, increase the amount of such Lender’s Commitment or (ii) in the case of any New Lender, make a new Commitment by executing and delivering to request increases the Administrative Agents an Increased Facility Activation Notice specifying (A) the amount of such increase in Commitment (in the case of any existing Lender) or new Commitment (in the case of any New Lender) and (B) the Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of increases in Commitments and new Commitments of all Lenders (including New Lenders) obtained after the Revolving Commitments or Closing Date pursuant to this paragraph shall not exceed Five Hundred Million Dollars ($500,000,000) and (ii) without the making consent of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (Bx) the aggregate amount of payments previously made by the other Revolving all increases in Commitments and new Commitments for all Lenders under Section 2.4.(j(including New Lenders) that have not been repaid, plus (C) interest accrued and unpaid effected on any Increased Facility Closing Date pursuant to and as of such date on such portion of the outstanding principal this paragraph shall be in a minimum amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans at least One Hundred Million Dollars (i$100,000,000) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise more than four (4) Increased Facility Closing Dates may be permitted to be prepaid prior to selected by the Term Loan Maturity Borrower after the Closing Date; provided that both at the time of any such request and at the open of business on any Increased Facility Closing Date, both before and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; provided, further, if, on any Increased Facility Closing Date, any Loans have been funded, then the Borrower shall be responsible to pay any breakage fees or costs in existence on connection with the effective date reallocation of such increaseoutstanding Loans. 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, (y) financial institution or other entity which, with the representations and warranties made or deemed made by consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Credit Agreement in connection with any transaction described in Section 2.10(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit 2.10(b), whereupon, effective as of the open of business on the related Increased Facility Closing Date, such bank, financial institution or other Loan Party in any Loan Document entity (a “New Lender”) shall become a Lender for all purposes and to which such Loan Party is the same extent as if originally a party hereto and shall be true bound by and correct in all material respects entitled to the benefits of this Credit Agreement.
(except c) As of the open of business on any Increased Facility Closing Date, (i) the increased or new Commitment of each Lender as specified in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty related Increased Facility Activation Notice shall be true and correct in all respects) on the effective date of such increase except to the extent that such representations and warranties expressly relate solely to an earlier date become effective; (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (zii) the Administrative Agent shall adjust (and shall be deemed to have received each of the following, in form adjusted) Schedule 1.01(a) accordingly; and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested Committed Amount shall be increased by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the aggregate amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall all new Commitments (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to existing Lenders) as specified on such Incremental Facility Activation Notice. Unless otherwise agreed by the Administrative Agent, its nameon each Increased Facility Closing Date, addressif any Loans have been funded and remain outstanding on such date, tax identification number and/or the Borrower shall borrow Loans under the increased Commitments of existing Lenders whose resulting Pro Rata Share has increased and under the new Commitments of any New Lenders, and shall apply the proceeds thereof to repay any then outstanding Loans of existing Lenders whose resulting Pro Rata Share has decreased (to the extent necessary to ensure the Loans are outstanding pro rata with the respective Commitments and whether or not participating in the increased Commitment Amount), all as determined by reference to the amount of each Type of Loan which would then have been outstanding from each such Lender if (i) each such Type had been borrowed immediately after the open of business on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type requested to be so borrowed had been proportionately funded by all Lenders in accordance with their respective Pro Rata Share based on their Commitments as in effect immediately after the open of business on the Increased Facility Closing Date. 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 (or, until the expiration of the then-current Interest Period, such other information rate as shall be necessary for agreed upon between the Administrative Agent to comply with “know your customer” Borrower and Anti-Money Laundering Laws, including without limitation, the Patriot Actrelevant Lender).
Appears in 1 contract
Sources: Credit Agreement (Baker Hughes Inc)
Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may, from time to time after delivery of its financial statements for the fiscal year ending December 31, 2011, agree that such Lenders shall have make, obtain or increase the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and their Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loansapplicable, by making available executing and delivering to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to Increased Facility Activation Notice specifying (Ai) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment increase and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term LoansFacility or Facilities involved, (ii) shall be equally the applicable Increased Facility Closing Date and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) the amortization schedule for such Incremental Term Loans, which shall not mature earlier than the Term Loans comply with Section 2.1.3(d) and (y) the Applicable Margin for such Incremental Term Loans; provided, that if the total yield (calculated for both the Incremental Term Loans and the Term Loans, including the upfront fees and any interest rate floors) in respect of any Incremental Term Loans exceeds the total yield for the existing Term Loans, the Applicable Margin for the Term Loans shall have be increased so that the total yield in respect of such Incremental Term Loans is no amortization or otherwise be permitted to be prepaid prior to higher than the total yield for the existing Term Loans. All Incremental Term Loans will mature on the Term Loan Maturity Date. Notwithstanding the foregoing, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance satisfactory to the Administrative Agent: (i) if without the consent of the Required Lenders, the aggregate amount of borrowings of Incremental Term Loans and the aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not previously delivered to exceed $200,000,000 and (ii) without the consent of the Administrative Agent, copies certified by the Secretary or Assistant Secretary (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (Ay) all corporate, partnership, member or other necessary action taken no more than four Increased Facility Closing Dates may be selected by the Borrower after the Closing Date. No Lender shall have any obligation to authorize such Incremental Facility and participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(Bb) all corporateAny additional bank, partnership, member financial institution or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrowerentity which, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; Borrower and the Administrative Agent (iiiwhich consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.20(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit E, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to Revolving Commitments, the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitment from each Lender participating in the relevant increase in an opinion amount determined by reference to the amount of counsel each Type of Loan (and, in the case of Eurodollar Advances, 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 Advance borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Advance 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 Guarantorsrelevant 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 addressed to terms of the Incremental Term Loans evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by with the Borrower, payable ’s consent (not to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1be unreasonably withheld) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide furnished 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 Laws, including without limitation, the Patriot Actparties hereto.
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Incremental Facilities. The (i) For the avoidance of doubt and notwithstanding any provision to the contrary set forth in this Agreement or any other Loan Document, this Agreement may be amended (or amended and restated) at any time and from time to time to increase the Aggregate Revolving Commitments or to establish one or more additional separate tranches of term loans (each such increase to the Revolving Commitments and/or establishment of a new tranche term loans being referred to herein as an “Incremental Facility,” and all of such increases and establishments being referred to collectively as the “Incremental Facilities”) to be made to the Borrower by an agreement in writing entered into by the Borrower, the Administrative Agent and each Person (including any Lender) that shall have the right agree to request increases in the aggregate amount of provide any such increase to the Revolving Commitments or the making such separate tranches of incremental term loans hereunder (“Incremental Term Loans”but without the consent of any other Lender), and any each such increase or Incremental Term LoansPerson that shall not already be a Lender shall, an “Incremental Facility”) by providing written notice to at the Administrative Agenttime such agreement becomes effective, which notice shall be irrevocable once givenbecome a Lender with the same effect as if it had originally been a Lender under this Agreement with the Revolving Commitment and/or term loan set forth in such agreement; provided, however, that after giving effect to any such Incremental Facility that: (A) without the consent of the Required Lenders, the aggregate principal amount of the sum of increases in the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loansand/or separate term loans effected pursuant to this Section 11.01(b) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus 500,000,000; (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans exist at the time of the effectiveness amendment giving effect to any such increase in the Revolving Commitments and/or the making of a separate term loan, as applicable, becomes effective; and (C) no Lender shall be obligated to participate in any such increase by increasing its own commitment hereunder unless such Lender elects to do so in its sole discretion at the time of such increase. The terms applicable to any additional Revolving Commitments or term loans shall be the same as those applicable to the initial Revolving Commitments (after giving effect to any amendment in connection with the establishment of such additional Revolving Commitments or term loans), except in respect of pricing, amortization and maturity; provided, however, that (A) each such Incremental Facility structured as a separate term loan tranche may be provided the right to ratable (with the Tranche B Term Loan and each other Incremental Facility structured as a separate term loan tranche) prepayment in connection with any voluntary or mandatory prepayment, (B) no more than 20% of the initial principal amount of any Incremental Facility structured as a separate term loan tranche shall amortize (pursuant to schedule amortization) prior to the Maturity Date of the Tranche B Term Loan, and (C) the final maturity date of any Incremental Facility structured as a separate term loan tranche shall not occur prior to the Maturity Date of the Tranche B Term Loan or the final maturity date of any other then existing Incremental Facility structured as a separate term loan tranche.
(ii) Any such amendment (or amendment and restatement) effected pursuant to Section 11.01(b)(i) shall amend the provisions of this Agreement and the other Loan Documents to set forth the terms of each Incremental Facility established thereby (including the amount and the final maturity thereof, any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof (in each case subject to any applicable restrictions set forth in subsection (i) of this Section 11.01(b)) and to effect such other changes (including changes to the provisions of Section 11.01(a), Section 2.05 and the definition of “Required Lenders”) as the Borrower and the Administrative Agent shall deem necessary or advisable in connection with the establishment of any such Incremental Facility; provided, however, that no such agreement shall: (A) effect any change described in any of clauses (A), (B), (C), (F) and (G) of Section 11.01(a) without the consent of each Person required to consent to such change under such clause (it being agreed, however, that any increase in the Aggregate Revolving Commitments or establishment of any Incremental Facility consisting of a separate tranche of term loans will not, of itself, be deemed to effect any of the changes described in clauses (A), (B), (C), (F) and (G) of Section 11.01(a)(i), and that modifications to Section 2.12, Section 9.03 or the definition of “Required Lenders” or other provisions relating to voting provisions to provide the Persons providing the applicable Incremental FacilityFacility with the benefit of such provisions will not, by themselves, be deemed to effect any of the changes described in clauses (D) and (E) of Section 11.01(a)(i)), or (B) amend Article VII, VIII or IX in any manner that by its terms benefits one or more tranches, but not all tranches, of Loans or Commitments without the prior written consent of Lenders holding a majority in interest of the Revolving Commitments then existing, if the Lenders holding Revolving Commitments are not so benefited, and of Lenders holding a majority in interest of each separate tranche of term loans then existing and not so benefited, (it being agreed that no provision requiring the Borrower to prepay term loans of one or more Incremental Facilities with the proceeds of Dispositions, Involuntary Dispositions, Debt Issuances, Equity Issuances or with the proceeds of excess cash flow will be deemed to violate this clause). In connection with The loans, commitments and borrowings of any Incremental FacilityFacility established pursuant to this Section 11.01(b) shall constitute Loans, any Lender becoming a party hereto shall (1) execute such documents Commitments and agreements as the Administrative Agent may reasonably request Borrowings under, and (2) in the case of any 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 entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranty set forth in Article IV hereunder and the security interests and Liens created by the Collateral Documents, and the Borrower shall take any actions reasonably required by the Administrative Agent to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, ensure and/or demonstrate that the Patriot Actrequirements of this sentence are satisfied after the establishment of any such Incremental Facility.
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Incremental Facilities. The (a) On one or more occasions at any time after the Closing Date, the Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) may by providing written notice to the Administrative AgentAgent elect to request the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), in an aggregate amount not to exceed $1,125,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Term Loan Commitments shall be effective, which notice shall be irrevocable once givena 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 willing to hold the requested Incremental Term Loan Commitments; provided, however, provided that after giving effect to (x) any such Incremental Facility Term Loan Commitments on any Increased Amount Date shall be in the minimum aggregate amount of the sum $10,000,000, (y) any Lender approached to provide all or a portion of the Revolving Incremental Term Loan Commitments plus may elect or decline, in its sole discretion, to provide an Incremental Term Loan Commitment, and (z) any Lender or other Person that is an Eligible Assignee to whom any portion of such Incremental Term Loan Commitment shall be allocated (each, an “Incremental Term Loan Lender”) shall be subject to the principal amount approval of the Borrower and the Administrative Agent (each of which approvals shall not be unreasonably withheld), unless such Incremental Term Loan Lender is an existing Lender.
(b) The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term Loans shall provide that (including a) the maturity date of any Incremental Term Loan that is a separate tranche shall be no earlier than the Maturity Date and shall not have any scheduled amortization payments prior to such date, (b) the Incremental Term Loans shall share ratably in any prepayments of the existing Loans, unless the Borrower and the Incremental Term Loan Lenders in respect of such Incremental Term Loans elect lesser payments and (c) except as otherwise provided in Section 2.04(f), the Incremental Term Loans shall otherwise be identical to the existing Loans.
(c) The effectiveness of any Incremental Term Loan Commitments and the availability of any borrowings under any such Incremental Term Loans) Loan Commitment shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent satisfaction of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) after giving pro forma effect to such Incremental Term Loan Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall be exist and (ii) as of the last day of the most recent period for which financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, the Borrower would have been in existence on compliance with the effective date of Financial Covenants that are applicable at such increase, time; (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be NAI-1534445371v61539529111v7 true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase Incremental Term Loan 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), ) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member corporate or other necessary action taken by the Borrower to authorize such Incremental Facility Term Loan Commitments and (B) all corporate, partnership, member member, or other necessary action taken by each Subsidiary Guarantor authorizing the guaranty Subsidiary Guaranty by such Subsidiary Guarantor of such Incremental FacilityTerm Loan Commitments; and (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an customary opinion of counsel to the Borrower and the GuarantorsSubsidiary Guarantors (which may be in substantially the same form as delivered on the Closing Date), and addressed to the Administrative Agent and the Lenders covering such matters as reasonably Lenders, and (iii) if requested by any ▇▇▇▇▇▇, new notes executed by the Administrative Agent; Borrower payable to any new Lender, and replacement notes executed by the Borrower payable to any existing Lenders.
(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 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 (ivii) new 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) 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 Incremental Term Loan Commitments and the Incremental Term Loan Lenders.
(f) The upfront fees payable to the Incremental Term Loan Lenders shall be determined by the Borrower and the applicable Incremental Term Loan Lenders.
(g) The Incremental Term Loan Commitments shall be effected pursuant to one or replacement Revolving Notes or Term Notes more Additional Credit Extension Amendments executed and delivered by the Borrower, payable to any Lenders participating in such the Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Loan 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 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 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 for or appropriate, in the opinion of the Administrative Agent Agent, to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, effect the Patriot Actprovisions of this Section 2.04.
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Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that each Lender shall have (i) in the right case of any existing Lender, increase the amount of such Lender’s Commitment or (ii) in the case of any New Lender, make a new Commitment by executing and delivering to request increases the Administrative Agent an Increased Facility Activation Notice specifying (A) the amount of such increase in Commitment (in the case of any existing Lender) or new Commitment (in the case of any New Lender) and (B) the Increased Facility Closing Date. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of increases in Commitments and new Commitments of all Lenders (including New Lenders) obtained after the Revolving Commitments or Closing Date pursuant to this paragraph shall not exceed Five Hundred Million Dollars ($500,000,000) and (ii) without the making consent of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (Bx) the aggregate amount of payments previously made by the other Revolving all increases in Commitments and new Commitments for all Lenders under Section 2.4.(j(including New Lenders) that have not been repaid, plus (C) interest accrued and unpaid effected on any Increased Facility Closing Date pursuant to and as of such date on such portion of the outstanding principal this paragraph shall be in a minimum amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans at least One Hundred Million Dollars (i$100,000,000) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise more than four (4) Increased Facility Closing Dates may be permitted to be prepaid prior to selected by the Term Loan Maturity Borrower after the Closing Date; provided that both at the time of any such request and at the open of business on any Increased Facility Closing Date, both before and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing; provided, further, if, on any Increased Facility Closing Date, any Loans have been funded, then the Borrower shall be responsible to pay any breakage fees or costs in existence on connection with the effective date reallocation of such increaseoutstanding Loans. 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, (y) financial institution or other entity which, with the representations and warranties made or deemed made by consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed), elects to become a “Lender” under this Credit Agreement in connection with any transaction described in Section 2.10(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit 2.10(b), whereupon, effective as of the open of business on the related Increased Facility Closing Date, such bank, financial institution or other Loan Party in any Loan Document entity (a “New Lender”) shall become a Lender for all purposes and to which such Loan Party is the same extent as if originally a party hereto and shall be true bound by and correct in all material respects entitled to the benefits of this Credit Agreement.
(except c) As of the open of business on any Increased Facility Closing Date, (i) the increased or new Commitment of each Lender as specified in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty related Increased Facility Activation Notice shall be true and correct in all respects) on the effective date of such increase except to the extent that such representations and warranties expressly relate solely to an earlier date become effective; (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (zii) the Administrative Agent shall adjust (and shall be deemed to have received each of the following, in form adjusted) Schedule 1.01(a) accordingly; and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested Committed Amount shall be increased by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the aggregate amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall all new Commitments (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to existing Lenders) as specified on such Incremental Facility Activation Notice. Unless otherwise agreed by the Administrative Agent, its nameon each Increased Facility Closing Date, addressif any Loans have been funded and remain outstanding on such date, tax identification number and/or the Borrower shall borrow Loans under the increased Commitments of existing Lenders whose resulting Pro Rata Share has increased and under the new Commitments of any New Lenders, and shall apply the proceeds thereof to repay any then outstanding Loans of existing Lenders whose resulting Pro Rata Share has decreased (to the extent necessary to ensure the Loans are outstanding pro rata with the respective Commitments and whether or not participating in the increased Commitment Amount), all as determined by reference to the amount of each Type of Loan which would then have been outstanding from each such Lender if (i) each such Type had been borrowed immediately after the open of business on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type requested to be so borrowed had been proportionately funded by all Lenders in accordance with their respective Pro Rata Share based on their Commitments as in effect immediately after the open of business on the Increased Facility Closing Date. 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 (or, until the expiration of the then-current Interest Period, such other information rate as shall be necessary for agreed upon between the Administrative Agent to comply with “know your customer” Borrower and Anti-Money Laundering Laws, including without limitation, the Patriot Actrelevant Lender).
Appears in 1 contract
Sources: Credit Agreement (Baker Hughes Inc)
Incremental Facilities. The (a) On one or more occasions at any time after the Closing Date, the Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) may by providing written notice to the Administrative AgentAgent elect to request the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), in an aggregate amount not to exceed $1,125,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Term Loan Commitments shall be effective, which notice shall be irrevocable once givena 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 willing to hold the requested Incremental Term Loan Commitments; provided, however, provided that after giving effect to (x) any such Incremental Facility Term Loan Commitments on any Increased Amount Date shall be in the minimum aggregate amount of the sum $10,000,000, (y) any Lender approached to provide all or a portion of the Revolving Incremental Term Loan Commitments plus may elect or decline, in its sole discretion, to provide an Incremental Term Loan Commitment, and (z) any Lender or other Person that is an Eligible Assignee to whom any portion of such Incremental Term Loan Commitment shall be allocated (each, an “Incremental Term Loan Lender”) shall be subject to the principal amount approval of the Borrower and the Administrative Agent (each of which approvals shall not be unreasonably withheld), unless such Incremental Term Loan Lender is an existing Lender.
(b) The terms and provisions of any Incremental Term Loan Commitments and any Incremental Term Loans shall provide that (including a) the maturity date of any Incremental Term Loan that is a separate tranche shall be no earlier than the Maturity Date and shall not have any scheduled amortization payments prior to such date, (b) the Incremental Term Loans shall share ratably in any prepayments of the existing Loans, unless the Borrower and the Incremental Term Loan Lenders in respect of such Incremental Term Loans elect lesser payments and (c) except as otherwise provided in Section 2.04(f), the Incremental Term Loans shall otherwise be identical to the existing Loans.
(c) The effectiveness of any Incremental Term Loan Commitments and the availability of any borrowings under any such Incremental Term Loans) Loan Commitment shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent satisfaction of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) after giving pro forma effect to such Incremental Term Loan Commitments and borrowings and the use of proceeds thereof, (i) no Default or Event of Default shall be exist and (ii) as of the last day of the most recent period for which financial statements have been delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable, the Borrower would have been in existence on compliance with the effective date of Financial Covenants that are applicable at such increase, time; (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase Incremental Term Loan 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), ) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; and (z) the Administrative Agent shall have received each of the following, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member corporate or other necessary action taken by the Borrower to authorize such Incremental Facility Term Loan Commitments and (B) all corporate, partnership, member member, or other necessary NAI-1534445371v11534445371v6 action taken by each Subsidiary Guarantor authorizing the guaranty Subsidiary Guaranty by such Subsidiary Guarantor of such Incremental FacilityTerm Loan Commitments; and (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an customary opinion of counsel to the Borrower and the GuarantorsSubsidiary Guarantors (which may be in substantially the same form as delivered on the Closing Date), and addressed to the Administrative Agent and the Lenders covering such matters as reasonably Lenders, and (iii) if requested by any Lender, new notes executed by the Administrative Agent; Borrower payable to any new Lender, and replacement notes executed by the Borrower payable to any existing Lenders.
(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 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 (ivii) new 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) The Administrative Agent shall notify the Lenders promptly upon receipt of athe Borrower’s notice of each Increased Amount Date and in respect thereof the Incremental Term Loan Commitments and the Incremental Term Loan Lenders.
(f) The upfront fees payable to the Incremental Term Loan Lenders shall be determined by the Borrower and the applicable Incremental Term Loan Lenders.
(g) The Incremental Term Loan Commitments shall be effected pursuant to one or replacement Revolving Notes or Term Notes more Additional Credit Extension Amendments executed and delivered by the Borrower, payable to any Lenders participating in such the Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Loan 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 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 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 for or appropriate, in the opinion of the Administrative Agent Agent, to comply with “know your customer” and Anti-Money Laundering Laws, including without limitation, effect the Patriot Actprovisions of this Section 2.04.
Appears in 1 contract
Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall have make, obtain or increase the right amount of their Commitments (any such new or increased Commitments, “Incremental Commitments”) by executing and delivering to request increases the Administrative Agent an Increased Facility Activation Notice specifying (x) the amount of such Incremental Commitments and (y) the applicable Increased Facility Closing Date (which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent (or such earlier date as shall be agreed by the Administrative Agent)); provided that (i) with respect to any Increased Facility Closing Date, the Incremental Commitments shall be in a minimum amount of $10,000,000 and (ii) the aggregate amount of Incremental Commitments obtained after the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice Closing Date pursuant to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) this Section 2.24 shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders125,000,000. No Lender shall be obligated have any obligation to participate in any way whatsoever increase described in this paragraph unless it agrees to increase do so in its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loanssole discretion, and the Borrower shall have no obligation to offer to any new Lender becoming the opportunity to so participate.
(b) Any additional bank, financial institution or other entity which, with the consent of the Borrower, the Issuing Lender and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a party to “Lender” under this Agreement in connection with any transaction described in Section 2.24(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit I-2, whereupon such requested increase must be an Eligible Assignee andbank, if such new financial institution or other entity (a “New Lender”) shall become a Lender is assuming Revolving Commitments, must be subject for all purposes and to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes 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 or otherwise directed by the Administrative Agent, or if any existing Lender is increasing its Revolving Commitmenton each Increased Facility Closing Date, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for shall (i) effect a settlement of all outstanding Revolving Loans among the account of such other Lenders, in same day funds, an amount equal Lenders that will reflect the adjustments to (A) the portion Total Commitments of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving applicable Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment Incremental Commitments and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) notify the Lenders of the occurrence of the Incremental Commitments to be effected on the Increased Facility Closing Date.
(d) It shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior a condition precedent to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting availability of any Incremental Facility under this Section is subject to the following conditions precedent: Commitments that (xi) no Default or Event of Default shall have occurred and be in existence on continuing immediately prior to and immediately after giving effect to the effective date making of such increaseIncremental Commitments, (yii) the representations and warranties made or deemed made by the Borrower and any other Loan Party set forth in any each Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty or, if qualified by materiality or Material Adverse Effectmateriality, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of the Increased Facility Closing Date immediately prior to and immediately after giving effect to the making of such Incremental Commitments, except to the extent expressly made as of an earlier date, in which case they shall be so true and correct as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower shall have delivered such customary legal opinions, board resolutions, secretary’s certificate, officer’s certificate and other documents, in each case consistent with those delivered on the GuarantorsClosing Date, and addressed to the Administrative Agent and the Lenders covering such matters as shall be reasonably requested by the Administrative Agent; Agent in connection with any Incremental Commitments and (iv) new or replacement Revolving Notes or Term Notes executed the Consolidated Fixed Charge Coverage Ratio for 91
(e) On each Increased Facility Closing Date, the fixed dollar portions of any Availability-based thresholds hereunder shall be increased by an amount proportional to the Borrowerincrease, payable to any Lenders participating in such Incremental Facility, as applicableif any, in the amount of Total Commitments above the Total Commitments in effect on the Closing Date effected by the Incremental Commitments on such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot ActIncreased Facility Closing Date.
Appears in 1 contract
Incremental Facilities. The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice Notwithstanding anything to the Administrative Agentcontrary herein, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans this Agreement and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party Documents may be amended at any time and from time to time to establish one or more additional classes of term or revolving loans by an agreement in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed writing entered into by the Borrower, the Administrative Agent and each Person (including any Lender providing such Incremental Facility, which supplement may include such amendments Lender) that shall agree to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with make a loan of any class so established (but without the consent of any other Lender), and each such Person that shall not already be a Lender shall, at the Guarantors theretotime such agreement becomes effective, become a Lender with the same effect as if it had originally been a Lender under this Agreement; provided that the aggregate outstanding principal amount of the loans of all classes established pursuant to this Section shall not exceed $750,000,000. Any such agreement shall amend the provisions of this Agreement and the other Loan Documents to set forth the terms of the class of loans established thereby, including the amount and final maturity thereof (iiiwhich shall not be earlier than the Tranche B Term Maturity Date), in the case of term loans, any provisions relating to amortization or mandatory prepayments or offers to prepay (it being agreed that the Weighted Average Life of such loans may be no less than the then current Weighted Average Life of the Tranche B Term Loans and that provisions for mandatory prepayments of and offers to prepay the term loans of any class may require such term loans to be prepaid or offered the right to be prepaid ratably with the Term Loans but shall not include any additional mandatory prepayment rights) an opinion and the interest to accrue and be payable thereon and any fees to be payable in respect thereof, and to effect such other changes (including changes to the provisions of counsel Sections 2.18 and 9.02, the definition of “Required Lenders” and any other provision of any Loan Document specifying the number or percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights under the Loan Documents or make any determination or grant any consent under the Loan Documents) as the Borrower and the Guarantors, and addressed to the Administrative Agent and shall deem necessary or advisable in connection with the establishment of any such class of term loans; provided that no such agreement shall amend Article V, VI or VII to establish any affirmative or negative covenant, Event of Default or remedy that by its terms benefits any such class of loans but not the outstanding Loans without the prior written consent of Lenders covering such matters as reasonably requested by holding a majority in interest of the Administrative Agentoutstanding Loans; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrowerprovided further, payable to any Lenders participating in such Incremental Facilitythat, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans if at the time of the effectiveness establishment of any class of term loans, the Applicable Margin for Tranche B Term Loans is less than the interest rate margin that would be applicable to such class of term loans by more than 0.50% per annum, the Applicable Margin for Tranche B Term Loans shall be increased as necessary so that such rate is not less than the interest rate margin applicable to such class of term loans minus 0.50%. The loans of any class established pursuant to this paragraph shall, to the extent provided in the agreement entered into in connection therewith, be entitled to all the benefits afforded by this Agreement and the other Loan Documents, and shall benefit equally and ratably from the Guarantees and security interests created by the Collateral Agreement and the other Security Documents. The proceeds of loans extended pursuant to this paragraph may not be used directly or indirectly to repay Tranche B Term Loans unless the relevant loans extended pursuant to this paragraph mature on a date no earlier than the later of (x) six months after the Tranche B Maturity Date and (y) the fifth anniversary of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute closing of such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any 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 Laws, including without limitation, the Patriot Actloans.
Appears in 1 contract
Sources: Credit Agreement (Idearc Inc.)
Incremental Facilities. The (a) So long as no Event of Default exists or would arise therefrom, the Borrower shall have the right right, at any time and from time to time after the Closing Date to (i) request increases new term loan commitments under one or more new term loan credit facilities to be included in this Agreement and/or increase the aggregate principal amount of the Revolving Commitments or the making any class of incremental term loans hereunder Term Loans (each, an “Incremental Term Facility” and, collectively, the “Incremental Term Loan Commitments”) and/or (ii) increase the Total Revolving Commitment (each, an “Incremental Revolving Facility” and, such commitments, the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans”” and, and together with any such increase or Incremental Term Loans, “Incremental Loans”) so long as the aggregate outstanding principal amount of all unutilized Incremental Commitments and Incremental Loans does not exceed the Incremental Amount; provided 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 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). Any Incremental Term Loan Commitment Incurred in the form of increases to any Class of existing Term Loans shall be identical to 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 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 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 “Incremental FacilityAdditional 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 (ii) in the case 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 (such consent not to be unreasonably withheld or delayed). Any allocation of any Incremental Commitments to any Affiliated Lender shall be subject to the terms of Section 11.6(g).
(c) No Incremental Commitment or Incremental Loans shall be effective unless the Borrower delivers to the Administrative Agent an Incremental Commitment Agreement executed and delivered by providing written notice the Borrower and the proposed Additional Lenders and such other documentation relating thereto as the Administrative Agent may reasonably request. Notwithstanding anything in Section 11.1 to the contrary, an Incremental Commitment Agreement 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, which notice shall be irrevocable once givento effect the provisions of this Section 4.17; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loansi) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion Incremental Term Loan Commitments will not be guaranteed by any Subsidiary of the outstanding principal amount of such Revolving Loans to Borrower other than the Subsidiary Guarantors, and will be purchased secured on a pari passu or (at the Borrower’s option) junior basis by such Lenderthe same Collateral securing the Loans, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans Loan Commitments and any incremental loans drawn thereunder (ithe “Incremental Term Loans”) shall rank pari passu in right of payment with or (at the Revolving Borrower’s option) junior to the Loans hereunder and (C) no Incremental Commitment Agreement may provide for any Incremental Commitment or any Incremental Term Loans to be secured by any Collateral or other assets of any Loan Party that do not also secure the Loans, ; (ii) shall no Lender will be equally and ratably secured with the Revolving Loans and Term Loans, required to provide any such Incremental Commitment unless it so agrees; (iii) in the case of Incremental Term Loansinterest rate margins, (x) shall not mature earlier than the Term Loans upfront fees, original issue discount, any interest rate floors and (y) shall have no amortization any customary arrangement or otherwise be permitted to be prepaid prior commitment fees applicable to the Term Loan Maturity Date, and (iv) loans made pursuant to the Incremental Commitments shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made determined by the Borrower and the applicable Additional Lenders; provided, that in the event that the All-In Yield for any other Loan Party in Incremental Term Facility incurred by the Borrower on or prior to the date that is eighteen (18) months after the Closing Date is higher than the All-In Yield for any Loan Document to which existing Term Loans hereunder by more than 50 basis points, then the Applicable Margin for such Loan Party is a party Term Loans shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase except increased to the extent necessary so that the All-In Yield for such representations Term Loans is equal to the All-In Yield for such Incremental Term Facility minus 50 basis points; (iv) such Incremental Commitment Agreement may provide for the inclusion, as appropriate, of Additional Lenders in any required vote or action of the Required Lenders or of the Lenders of each Tranche hereunder and warranties expressly relate solely may provide class protection for any additional credit facilities in a manner consistent with those provided the Facilities pursuant to the provisions of Section 11.1 as in effect on the Closing Date; (v) the final maturity date of any Incremental Loans or Incremental Commitments shall be no earlier than the Latest Maturity Date and the Weighted Average Life to Maturity of any Incremental Loans made pursuant to Incremental Term Loan Commitments shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans; (vi) the prepayment provisions shall be determined by the Borrower and the applicable Additional Lenders; provided that they shall not be more favorable than the prepayment provisions applicable to the Term Loans; (vii) if such Incremental Loans or Incremental Commitment shall be secured on a junior basis, a Senior Representative validly acting on behalf of the holders of such Indebtedness shall have become party to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), Intercreditor Agreement; and (zviii) the Administrative Agent other terms and documentation in respect thereof, to the extent not consistent with this Agreement as in effect prior to giving effect to the Incremental Commitment Agreement, shall have received each of the following, in form and substance otherwise be reasonably satisfactory to the Administrative Agent: .
(d) The Administrative Agent shall promptly notify each Lender whenever any Incremental Commitment becomes effective.
(e) No Incremental Commitment Agreement shall become effective unless the Administrative Agent has received (i) if a certificate executed by a Responsible Officer of the Borrower to the effect that no Event of Default has occurred and is continuing (subject to Section 1.3), and (ii) such additional Security Documents, legal opinions, board resolutions, certificates and other documentation as may be required by such Incremental Commitment Agreement or reasonably requested by the Administrative Agent.
(f) Upon the implementation of any Incremental Revolving Facility pursuant to this Section 4.17, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall be held on a pro rata basis on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 4.17) and (ii) the existing Revolving Lenders shall assign Revolving Loans to certain other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Revolving Commitments (after giving effect to any increase in the Revolving Commitment pursuant to this Section 4.17); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not previously delivered apply to the transactions effected pursuant to the immediately preceding sentence.
(g) Subject to clause (i) below, each Incremental Commitment Agreement shall contain representations and warranties by the Borrower substantially in the form of those made by the Borrower in this Agreement, except for any exceptions, disclosures or modifications reasonably acceptable to the Administrative Agent, copies certified the Borrower and the Additional Lender(s) making an Incremental Commitment pursuant to such Incremental Commitment Agreement.
(h) In connection with any Incremental Commitment Agreement pursuant to this Section 4.17, at the direction and as reasonably requested by Administrative Agent to ensure the Secretary or Assistant Secretary continuing priority of the Lien of the Mortgages as security for the Loans, (A) all corporate, partnership, member or other necessary action taken by the Borrower or Loan Party party to authorize such Incremental Facility the Mortgages shall enter into, and deliver to the Administrative Agent a Modification and (B) all corporateBorrower shall deliver, partnershipor cause the title company or local counsel, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement as applicable, to this Agreement executed by the Borrowerdeliver, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent local counsel opinions, an endorsement to the relevant title policies, date down(s) or other documents, instruments or evidence of the priority of the Lien of the Mortgages as security for the Loans, each in form and the Lenders covering such matters substance reasonably satisfactory to Administrative Agent. In addition, as reasonably requested by the Administrative Agent; , the Borrower shall deliver an updated flood hazard certificate for each of the Mortgaged Properties.
(i) Notwithstanding anything to the contrary in this Section 4.17 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, the conditions to entering into and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in availability of such Incremental FacilityFacility (including applicability of customary “SunGard” or other “certain funds” conditionality), and the timing of satisfaction or waiver of any such conditions (as applicable, in between being satisfied or waived upon execution of an amendment evidencing such Incremental Facility or upon the amount making of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental FacilityLoans thereunder), any 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 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 as agreed to among the Administrative Agent to comply with “know your customer” Borrower and Anti-Money Laundering Laws, including without limitation, the Patriot ActIncremental Lenders.
Appears in 1 contract
Sources: Credit Agreement (IAA, Inc.)
Incremental Facilities. The Borrower (a) At any time during the period from and after the Closing Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). Agent shall have 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 right interest margin proposed by Borrowers, and if sufficient Lenders do not agree to request increases increase their Revolver Commitments in connection with such proposed Increase, then Agent (with Borrowers’ consent) or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than 5 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 Revolving Increases to the Revolver Commitments exceed $50,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount:
(i) Agent or Borrowers have obtained the making commitment of incremental term loans hereunder one or more Lenders (“Incremental Term Loans”, or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such increase Lenders (or Incremental Term Loansprospective lenders), an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party 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 such requested increase must be an Eligible Assignee andIncrease, 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 new Lender is assuming Revolving Commitmentsother documentation as Agent shall reasonably request, must be subject in order to the consent of each Issuing Bank enable Agent and the Swingline Lender. If a new Lender becomes a party Lenders to this Agreementcomply with any of the requirements under Regulations T, U or if any existing Lender is increasing its Revolving Commitment, such Lender shall on X of the date it becomes a Lender hereunder Federal Reserve Board,
(or in the case of an existing Lender, increases its Revolving Commitmentiv) Borrowers have delivered to Agent updated pro forma Projections (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of Revolving Commitmentsthe applicable Increase (calculated as if a Covenant Testing Period was in effect during the entire twelve month period), and
(v) of any outstanding Revolving Loans, by making available The interest rate margins with respect to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by 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 the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount (such Lenderdate, plus (B) the aggregate amount “Increase Date”). Any Increase Joinder may, with the consent of payments previously made by Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.14.
(c) [Reserved.]
(d) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Lenders under Section 2.4.(j) that have not been repaidLoans shall be deemed, plus (C) interest accrued and unpaid to and as of such date on such portion of unless the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if anycontext otherwise requires, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. include Revolving Loans made pursuant to any the increased Revolving Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14.
(e) Each of the Lenders having a Revolver Commitment and prior to the Incremental Term Loans Increase Date (ithe “Pre-Increase Revolver Lenders”) shall rank pari passu assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) participation interests in the case Letters of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence Credit on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Increase Date as shall be necessary for in order that, after giving effect to all such assignments and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such increased Revolver Commitments.
(f) The Revolving Loans, Revolver Commitments, and Maximum Revolver Amount established pursuant to this Section 2.14 shall constitute Revolving Loans, Revolver Commitments, and Maximum Revolver Amount under, and shall be entitled to all the Administrative 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 comply with “know your customer” ensure and Anti-Money Laundering Laws, including without limitation, demonstrate that the Patriot ActLiens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
Appears in 1 contract
Incremental Facilities. The Borrower Pursuant to Section 2.22 of the Credit Agreement, on and as of the Increase Effective Date:
(a) Each 2021 Incremental Lender hereby agrees that upon, and subject to, the occurrence of the Increase Effective Date, such 2021 Incremental Lender shall be deemed to be, and shall become, a “Term Lender” and a “Lender” for all purposes of, and subject to all the obligations of a “Term Lender” and a “Lender” under, the Amended Credit Agreement and the other Loan Documents. Each 2021 Incremental Lender shall have the right to request increases a 2021 Incremental Term Loan Commitment in the aggregate amount set forth opposite such 2021 Incremental Lender’s name on the Commitment Schedule in the table labelled “2021 Incremental Term Loan Commitments” (such commitment hereinafter referred to as the “2021 Incremental Term Loan Commitments”). Each Loan Party and the Administrative Agent hereby agree that from and after the Increase Effective Date, each 2021 Incremental Lender shall be deemed to be, and shall become, a “Term Lender” and a “Lender” for all purposes of, and with all of the Revolving Commitments or rights and remedies of a “Term Lender” and a “Lender” under, the making of incremental term loans hereunder Amended Credit Agreement and the other Loan Documents.
(“b) Each 2021 Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice Lender hereby consents to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount incurrence of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and 2021 Incremental Term Loans shall be made at on the time terms and conditions set forth herein and agrees to make 2021 Incremental Term Loans to the Borrower requests such increase. Each such on the Increase Effective Date in a principal amount not to exceed its respective 2021 Incremental Facility must be an aggregate minimum amount Term Loan Commitment.
(c) Notwithstanding anything to the contrary herein or in any Loan Document (including, for the avoidance of $25,000,000 and integral multiples of $5,000,000 doubt, any restrictions set forth in excess thereof. The ArrangersSection 2.22(a)(iv)), in consultation with the Borrower, shall manage all aspects incurrence of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or 2021 Incremental Term Loans and the allocations thereof among terms and conditions on which such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or 2021 Incremental Term Loans, and any new Lender becoming a party Loans are extended pursuant to this Agreement and the Amended Credit Agreement are expressly consented to by each 2021 Incremental Term Loan Lender and each Lender party hereto (in connection with any such requested increase must be their capacity as both an Eligible Assignee and, if such new Incremental Term Loan Lender is assuming Revolving Commitments, must be subject and a Lender to the consent extent applicable).
(d) For the avoidance of each Issuing Bank and doubt, the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the 2021 Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than reduce the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 Lender that is organized availability 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 Laws, including without limitation, the Patriot Act.Fixed Incremental Amount. |
Appears in 1 contract
Sources: Incremental Facility Amendment (Jamf Holding Corp.)
Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall have make, obtain or increase the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“their Incremental Term Loans”Loans or Revolving Commitments, as applicable, by executing and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice delivering to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Agents an Increased Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans Activation Notice specifying (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (Ai) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment increase and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term LoansFacility or Facilities involved, (ii) shall be equally the applicable Increased Facility Closing Date and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the applicable Incremental Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to amortization schedule for such Incremental Term Loans, which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier datecomply with Section 2.3(c), and (z) the Administrative Agent Applicable Margin for such Incremental Term Loans; provided, that (i) the interest rate margins with respect to (x) any Incremental Term Loans that have customary terms for senior secured term A loans (an “Incremental Term A Facility”) as determined by the board of directors of the Borrower in good faith based on the expected lenders, amortization, tenor and other material terms of such Incremental Term Loans, shall not be greater than the interest rate with respect to any Tranche A Term Loans plus 0.50% per annum unless the interest rate applicable to all Tranche A Term Loans is increased so that the interest rate applicable to the Incremental Term A Facility does not exceed the interest rate applicable to all Tranche A Term Loans by more than 0.50% per annum and (y) any Incremental Term Loans that have received customary terms for senior secured term B loans (an “Incremental Term B Facility”), syndicated to institutional term loan investors, as determined by the board of directors of the Borrower in good faith based on the expected lenders, amortization, tenor and other material terms of such Incremental Term Loans, shall not be greater than the interest rate with respect to the Tranche B Term Loans plus 0.50% per annum, unless the interest rate applicable to the Tranche B Term Loans is increased so that the interest rate applicable to the Incremental Term B Facility does not exceed the interest rate applicable to the Tranche B Term Loans by more than 0.50% per annum; provided that in determining the applicable interest rates applicable to loans and/or commitments incurred pursuant to each of the followingIncremental Term Loans, in form and substance satisfactory the Tranche A Term Loans or the Tranche B Term Loans, as applicable, (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent Lenders of the Guarantors thereto; (iii) an opinion of counsel to Tranche A Term Loans or the Borrower and Tranche B Term Loans, as applicable, or the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new Incremental Term A Facility or replacement Revolving Notes or Incremental Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental B Facility, as applicable, in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), but in each case, exclusive of any arrangement, structuring or other fees payable in connection with such Incremental Term Loans and (y) if the Incremental Term A Facility or Incremental Term B Facility, as applicable, includes an interest rate floor different than the interest rate floor applicable to the Term A Loans or the Term B Loans, as applicable, such difference shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin under the Tranche A Term Loans or the Tranche B Term Loans, as applicable, shall be required, (ii) after giving pro forma effect to the incurrence of Indebtedness on such Increased Facility Activation Date (assuming any increase in commitments under the Revolving Facility were fully drawn), the Borrower shall be in compliance with the covenants set forth in Section 7.1 recomputed as of the last day of the most recently ended four quarters period, (iii) the weighted Average life to maturity of (x) any Incremental Term A Facility shall be not shorter than the then remaining weighted average life to maturity of the Tranche A Term Loans and (y) any Incremental Term B Facility shall be not shorter than the then remaining weighted average life to maturity of the Tranche B Term Loans and (iv) the Administrative Agent shall have received such legal opinions, board resolutions, officers’ certificates, reaffirmation agreements, mortgage amendments, date-down endorsements and other documentation as it shall reasonably request. Notwithstanding the foregoing, (i) the aggregate amount of such Revolving Lender’s Revolving Commitment or aggregate borrowings of Incremental Term Loans at and the time aggregate amount of incremental Revolving Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the difference between (A) the Maximum Incremental Amount and (B) the cumulative amount of Indebtedness incurred pursuant to Section 7.2(k) and (ii) without the consent of the effectiveness 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 5 Increased Facility Closing Dates may be selected by the Borrower after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the applicable Borrower and the Administrative Agent (which consent shall not be unreasonably withheld; provided that no consent of the Administrative Agent shall be required for an assignment of all or any portion of an Incremental Facility. In Term Loan to a Lender, an affiliate of a Lender or an Approved Fund) may elect to become a “Lender” under this Agreement in connection with any Incremental Facilitytransaction described in Section 2.24(a) shall execute a New Lender Supplement (each, any a “New Lender becoming Supplement”), substantially in the form of Exhibit I-3, 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.
(1c) execute such documents and agreements as Unless otherwise agreed by the Administrative Agent may reasonably request and 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 (2) 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 then outstanding 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 Lender that is organized under Eurodollar Loan borrowed pursuant to the laws of a jurisdiction outside preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the United States other Lenders in the same Eurodollar Tranche (or, until the expiration of Americathe then-current Interest Period, provide to the Administrative Agent, its name, address, tax identification number and/or such other information 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 for 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 comply with “know your customer” be unreasonably withheld) and Anti-Money Laundering Laws, including without limitation, furnished to the Patriot Actother parties hereto.
Appears in 1 contract
Incremental Facilities. (a) At any time from and after the Amendment No. 6 Effective Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolving Facility 105 Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolving Facility Commitments not to exceed the Available Increase Amount (each such increase, an “Increase”). The Borrower Borrowers shall have invite each Lender to increase its Revolving Facility Commitments (it being understood that no Lender shall be obligated to increase its Revolving Facility Commitments), and if any Lenders do not agree to increase their Revolving Facility Commitments in connection with such proposed Increase, then Borrowers 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 $30,000,000 and integral multiples of $10,000,000 in excess thereof. In no event may the right Revolving Facility Commitments and the Maximum Revolver Amount be increased pursuant to request increases this Section 2.21 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 Revolving Facility Commitments exceed $100,000,000.
(b) Each of the following shall be conditions precedent to any Increase: (i) Administrative Agent or Borrowers have obtained the making commitment of incremental term loans hereunder one or more Lenders (“Incremental Term Loans”, or other prospective lenders) reasonably satisfactory to Administrative Agent and Borrowers to provide the applicable Increase and any such increase Lenders (or Incremental Term Loansprospective lenders), Borrowers, and Administrative Agent have signed a joinder agreement to this Agreement (an “Incremental FacilityIncrease Joinder”) by providing written notice ), in form and substance reasonably satisfactory to the Administrative Agent, to which notice such Lenders (or prospective lenders), Borrowers, and Administrative Agent are party, (ii) each of the conditions precedent set forth in Section 5.01(b) and (c) are satisfied, (iii) the interest rate margins with respect to the Revolving Facility Loans to be made pursuant to the increased Revolving Facility Commitments shall be irrevocable once given; the same as the interest rate margin applicable to Revolving Facility Loans hereunder immediately prior to the applicable Increase Date (as defined below) (the date of the effectiveness of the increased Revolving Facility Commitments and the Maximum Revolver Amount, the “Increase Date”), provided, howeverthat nothing in this Section 2.21 shall prohibit the payment of commitment fees or other fees to Lenders participating in an Increase, that and (iv) Administrative Agent and Lenders shall have received mortgage amendments, title policy endorsements, flood certifications, legal opinions and such other documents as Administrative Agent may reasonable request in connection with any Mortgage.
(c) Any Increase Joinder may, with the consent of Administrative Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.21.
(d) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Facility Loans shall be deemed, unless the context otherwise requires, to include Revolving Facility Loans made pursuant to the increased Revolving Facility Commitments and Maximum Revolver Amount pursuant to this Section 2.21. (e) Each of the Lenders having a Revolving Facility Commitment prior to the Increase Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Revolving Facility Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver 106 Lender, at the principal amount thereof, such interests in the Revolving Facility Loans and participation interests in Letters of Credit on such Increase Date as shall be necessary in order that, after giving effect to any all such Incremental assignments and purchases, such Revolving Facility the aggregate amount Loans and participation interests in Letters of the sum of the 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 Revolving Commitments plus the principal amount of Term Loans Facility Commitments.
(including any such Incremental Term f) The Revolving Facility Loans) , Revolving Facility Commitments, and Maximum Revolver Amount established pursuant to this Section 2.21 shall not exceed $650,000,000. The allocation of any increase between the constitute Revolving Commitments Facility Loans, Revolving Facility Commitments, and Incremental Term Loans Maximum Revolver Amount under, and shall be made at entitled to all the time Borrower requests such increasebenefits 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. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 Borrowers shall take any actions reasonably required by Administrative Agent to ensure and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with demonstrate that the Borrower, shall manage all aspects of Liens and security interests granted by the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders Loan Documents continue to be approached with respect to such increase perfected under the Code or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and otherwise after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment establishment of any such new Revolving LoansFacility Commitments and Maximum Revolver Amount. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term LoansARTICLE III TAXES, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this YIELD PROTECTION AND ILLEGALITY Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.3.01
Appears in 1 contract
Sources: Credit Agreement (Constellium Se)
Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”Borrowers may, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative AgentAgent from time to time, which notice shall be irrevocable once given; providedelect to request prior to the Revolving Credit Maturity Date, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum one or more increases of the Revolving Credit Commitments plus the principal amount of Term Loans (including any such Incremental Term Loansincrease, a “Facility Increase”) shall and/or the establishment of revolving credit commitments under one or more new revolving credit tranches (any such revolving credit commitment, a “New Revolving Credit Commitment”; any Loan made in respect thereof, a “New Revolving Credit Loan”) in amounts that are (i) not exceed to exceed, in the aggregate for all Facility Increases and New Revolving Credit Commitments, $650,000,000. The allocation of 100,000,000 and (ii) individually not less than $20,000,000 (or any increase between lesser amount that is approved by the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 Administrative Agent) and integral multiples of $5,000,000 in excess thereofof that amount. The ArrangersEach such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrowers propose that the Facility Increase or New Revolving Credit Commitments 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 and (B) the identity of each Lender or Affiliate of a Lender or other Eligible Assignee that is consented to by the Administrative Agent (such consent not to be unreasonably withheld or delayed) to whom the Borrowers propose any portion of such Facility Increase or New Revolving Credit Commitments be allocated (any such lender, a “New Revolving Credit Lender”) and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Facility Increase or New Revolving Credit Commitments may elect or decline, in consultation its sole discretion, to provide a portion of such Facility Increase or New Revolving Credit Commitments. Such Facility Increase or New Revolving Credit Commitments, as applicable, shall become effective as of such Increased Amount Date; provided that (1) no Event of Default shall exist on such Increased Amount Date before or after giving effect to such Facility Increase or New Revolving Credit Commitments, as the case may be, except, in the case of (x) a provision of any New Revolving Credit Loan in connection with a Permitted Acquisition or an Acquisition, to the extent such condition is omitted by the applicable Incremental Facility Joinder Agreement and (y) that the proceeds of such New Loans are being used to finance a Limited Condition Transaction, in which case no Event of Default under Sections 7.01(b), 7.01(c), 7.01 (g) or 7.01(h) shall exist on such Increased Amount Date before or after giving effect to such New Commitments; (2) such Facility Increase or New Revolving Credit Commitments, as applicable, shall be effected pursuant to one or more Incremental Facility Joinder Agreements executed and delivered by the Loan Parties to the Administrative Agent and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 2.20; (3) the Borrowers shall make any payments required pursuant to Section 2.16 in connection with such Facility Increase or New Revolving Credit Commitments, as applicable; (4) the Borrowers shall be in pro forma compliance with the BorrowerFinancial Covenant (disregarding whether a Testing Period is then in effect) after giving effect to such Facility Increase or New Revolving Credit Commitments, as applicable and the Revolving Credit Loans to be made thereunder and the application of proceeds therefrom as if made and applied on such date; (5) the interest rate margins, original issue discount, upfront fees (if any) and interest rate floors (if any) for any New Revolving Credit Loan shall manage all aspects be determined by Borrowers and the applicable Lender; provided that if the Yield in respect of any New Revolving Credit Loans exceeds the syndication of such Incremental Facilities, including decisions as Yield with respect to the selection of Revolving Credit Loans by more than 50 basis points, the existing Lenders and/or other banks, financial institutions and other institutional lenders Applicable Percentage with respect to the Revolving Credit Loans shall be approached automatically increased on the Increased Amount Date with respect to the Revolving Credit Loans so that the Yield for the Revolving Credit Loans is equal to the Yield with respect to such increase or Incremental Term New Revolving Credit Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee andminus 50 basis points; provided further that, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or Adjusted LIBO Rate in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) New Revolving Credit Loan includes a floor greater than the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay floor applicable to the Revolving Lenders amounts payableCredit Loan and such floor is greater than the Adjusted LIBO Rate in effect for a 3-month interest period at such time, if any, to such Revolving Lenders under Section 5.4. as a result excess amount (above the greater of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment floor and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (iisuch Adjusted LIBO Rate) shall be equally and ratably secured with equated to such interest rate for purposes of determining the applicable interest rate under such New Revolving Loans and Term Credit Loan; (6) any New Revolving Credit Loan shall have a Weighted Average Life to Maturity no shorter than that of the remaining Revolving Credit Loans, ; (iii7) in the case final maturity date of Incremental Term Loans, (x) any New Revolving Credit Loan shall not mature be no earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Revolving Credit Maturity Date, and ; (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the 8) all representations and warranties made or deemed made by in the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party Documents shall be true and correct in all material respects (except in the case of a representation or warranty if already qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) immediately prior to, and after giving effect to, such New Revolving Credit Loan on the effective date of such increase except date; provided that to the extent that such representations and warranties expressly relate solely specifically refer to an earlier date (in which case such representations and warranties date, they shall have been be true and correct in all material respects as of such earlier date; (except 9) the New Revolving Credit Loans shall be senior secured obligations and shall rank pari passu in right of security and payment with the Revolving Credit Loans; and (10) the Borrowers shall deliver or cause to be delivered any other documents reasonably requested by Administrative Agent in connection with any such transaction. Once any Facility Increase or New Revolving Credit Commitments shall become effective as of their respective Increased Amount Dates in accordance with this Section 2.24(a), extensions of credit may be made thereunder in accordance with the terms of the applicable Incremental Facility Joinder Agreement without any additional conditions thereto; provided that, with respect to each such extension of credit, each of the conditions set forth in Sections 4.02 shall be satisfied. Notwithstanding the foregoing, if the proceeds of any New Revolving Credit Loan will be used to consummate a Limited Condition Transaction, the condition set forth in clause (8) above that representations and warranties made in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty Loan Documents shall be true and correct in all respectsmaterial respects immediately prior to, and after giving effect to, such New Revolving Credit Loans on such date may instead be limited in accordance with the terms of the applicable Incremental Facility Joinder Agreement to the accuracy in all material respects of (i) on the representations and warranties made by the Loan Parties in Sections 3.01(a), 3.01(d), 3.02(a), 3.02(b)(i)(A), 3.03, 3.11(b), 3.12, 3.19, 3.22 and 3.26 and (ii) in the case of a Permitted Acquisition or an Acquisition that is a Limited Condition Transaction, any representations and warranties made by or with respect to the target, its Subsidiaries and respective businesses in the acquisition, sale or purchase documentation in connection with such Permitted Acquisition or an Acquisition as are material to the interests of the Lenders (in their capacities as such) but only to the extent that Holdings or any of its Affiliate has the right to terminate its obligations under the applicable acquisition, sale or purchase documentation or decline to consummate the applicable acquisition as a result of a breach of such earlier daterepresentation.
(b) To the extent that the Facility Increase is being established on a date when Revolving Credit Commitments exist, subject to the satisfaction of the foregoing terms and conditions, (i) each of the then existing Revolving Credit Lenders, if any, shall assign to each of the Revolving Credit Lenders providing such Facility Increase, and each of such Revolving Credit Lenders shall purchase from each of such 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 all Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to such Facility Increase.
(zc) the The Administrative Agent shall have received each notify Lenders promptly upon receipt of the followingBorrowers’ notice of each Increased Amount Date and in respect thereof the Facility Increase or the New Revolving Credit Commitments, in form as applicable, the Lenders providing such Facility Increase or New Revolving Credit Commitments and substance satisfactory their respective interests therein.
(d) The terms and provisions of the New Revolving Credit Loans shall be identical to the Administrative Agent: (i) if not previously delivered to the Administrative AgentRevolving Credit Loans, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement except as the Administrative Agent deems otherwise reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed satisfactory to the Administrative Agent and permitted by this Section 2.24; provided that (x) any applicable Incremental Facility Joinder Agreement in respect of any New Revolving Credit Commitment may establish an additional letter of credit (any such letter of credit commitment, a “New L/C Commitment”; any Letter of Credit issued in respect thereof, a “New Letter of Credit”) or swingline subfacility (any such swingline commitment, a “New Swingline Commitment”; any Swingline Loan made in respect thereof, a “New Swingline Loan”) and (y) any New Revolving Credit Loans may have different terms that are effective after the Lenders covering Revolving Credit Maturity Date with respect to the Revolving Credit Loans.
(e) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Facility Joinder Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the terms of the Facility Increase or New Revolving Credit Commitments evidenced thereby, and to increase the Applicable Percentage if, and to the extent, designated in the applicable Incremental Facility Joinder Agreement. Any such matters as reasonably requested deemed amendment may be memorialized in writing by the Administrative Agent; Agent with the Borrowers’ consent (not to be unreasonably withheld) and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide furnished 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 Laws, including without limitation, the Patriot Actparties hereto.
Appears in 1 contract
Sources: Revolving Credit Agreement (Houghton Mifflin Harcourt Co)
Incremental Facilities. The (a) So long as no Specified Default or Event of Default under the covenant set forth in Subsection 8.1 exists or would arise therefrom, the Borrower Representative shall have the right right, at any time and from time to time after the Closing Date, to request increases in (i) an increase of the aggregate amount of the then outstanding Commitments (the “Incremental Revolving Commitments”), (ii) commitments under one or more new revolving facilities (the “New Revolving Commitments” and together with the New Revolving Commitments, the “Incremental Commitments”) or (iii) one or more term loans (the “Incremental ABL Term Loans” and together with the Incremental Revolving Commitments or and the making of incremental term loans hereunder (New Revolving Commitments, collectively, the “Incremental Term Loans”, Facilities” and any such increase or Incremental Term Loanseach, an “Incremental Facility”) by providing written notice ). Notwithstanding anything to contrary herein, the Administrative Agentprincipal amount of any Incremental Facility shall not exceed the Available Incremental Amount at such time. The Borrower Representative may seek to obtain Incremental Facilities from existing Lenders or other Persons, which notice shall be irrevocable once given; as applicable (each an “Incremental Facility Increase,” and each Person extending, or Lender extending, Incremental Facilities, an “Additional Lender”), provided, however, that after giving effect (i) no Lender shall be obligated to provide an Incremental Facility Increase as a result of any such request by the Borrower Representative, and (ii) any Additional Lender which is not an existing Lender shall be subject to the approval of, the Administrative Agent and, in the case of any Incremental Revolving Commitments or New Revolving Commitments, the Borrowers (each such approval not to be unreasonably withheld, conditioned or delayed). Each Incremental Facility the Increase shall be in a minimum aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed at least $650,000,000. The allocation of any increase between the Revolving Commitments 5,000,000 and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and in integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing LenderIncremental Commitments denominated in Dollars), increases its Revolving Commitmentin a minimum aggregate amount of at least €5,000,000 and in integral multiples of €5,000,000 in excess thereof (in the case of Incremental Commitments denominated in Euro) or in a minimum aggregate amount of at least the Dollar Equivalent of $5,000,000 and in integral multiples of at least the Dollar Equivalent of $5,000,000 in excess thereof (in the case of Incremental Commitments denominated in a Designated Foreign Currency other than Euro) (or, in each case, in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion). Any Incremental Facility Increase may be denominated in Dollars or any Designated Foreign Currency.
(i) Any Incremental ABL Term Loans (A) shall not have any borrower other than a Borrower and as a condition theretoshall not be guaranteed by any Subsidiary of the Parent other than the Guarantors and the Affiliate Guarantors and shall rank pari passu (or, at the option of the Borrower Representative, junior) purchase from the other Lenders its Revolving Commitment Percentage in right of (determined x) priority with respect to the Lenders’ respective Revolving Collateral and (y) payment with respect to the Obligations in respect of the Commitments and after giving effect to any existing Incremental ABL Term Loans, (B) shall be part of, and count against, the increase Borrowing Base, (C) shall not have a final maturity that is earlier than the Termination Date, (D) shall not amortize at a rate greater than 1.0% per annum, (E) for purposes of Revolving Commitmentsprepayments, shall be treated no more favorably than the Loans, (F) may not be secured by any Collateral or other assets of any outstanding Revolving Loans, by making available Loan Party that do not also secure the Loans and (G) shall otherwise be on terms as are reasonably satisfactory to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to Agent.
(ii) Any Incremental Revolving Commitments (A) the portion of the outstanding principal amount of such Revolving Loans to shall not have any borrower other than a Borrower and shall be purchased by such Lender, plus (B) the aggregate amount of payments previously made guaranteed by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment Guarantors and the Incremental Term Loans (i) Affiliate Guarantors and shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than priority with respect to the Term Loans Collateral and (y) shall have no amortization or otherwise be permitted payment with respect to be prepaid the Obligations in respect of the Commitments in effect prior to the Term Loan Maturity Incremental Revolving Commitment Effective Date and (B) shall be on terms and pursuant to the documentation applicable to the existing Commitments; provided that the Applicable Commitment Fee Rate and Applicable Margin relating to the Incremental Revolving Commitments may exceed the Applicable Commitment Fee Rate and Applicable Margin relating to the Commitments in effect prior to the Incremental Revolving Commitment Effective Date so long as the Applicable Commitment Fee Rate and Applicable Margins relating to all Revolving Credit Loans shall be adjusted to be equal to the Applicable Commitment Fee Rate and Applicable Margin payable to the Lenders providing such Incremental Revolving Commitments.
(iii) Any New Revolving Commitments (A) shall not have any borrower other than a Borrower and shall not be guaranteed by any Subsidiary of the Parent other than the Guarantors and the Affiliate Guarantors and shall rank pari passu (or, at the option of the Borrower Representative, junior) in right of (x) priority with respect to the Collateral and (y) payment with respect to the Obligations in respect of the Commitments and any existing New Revolving Commitments, (B) shall be part of, and count against, the Borrowing Base, (C) shall not have a final maturity that is earlier than the Termination Date, and (ivD) shall be treated substantially the same (on terms and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject pursuant to the following conditions precedent: (x) no Default or Event of Default documentation applicable to the existing Commitments; provided that the Applicable Commitment Fee Rate and Applicable Margin relating to the New Revolving Commitments may exceed the Applicable Commitment Fee Rate and Applicable Margin relating to the Commitments in effect prior to the New Revolving Commitment Effective Date so long as the Applicable Commitment Fee Rate and Applicable Margins relating to all Revolving Credit Loans shall be in existence on adjusted to be equal to the effective date of Applicable Commitment Fee Rate and Applicable Margin payable to the Lenders providing such increase, New Revolving Commitments.
(yiv) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall The Incremental Facilities may be true and correct in all material respects (except in the case form of a representation or warranty qualified by materiality or Material Adverse Effectseparate “first-in, last-out” tranche (the “FILO Tranche”) with a separate borrowing base against the Collateral and interest rate margins in which each case such representation or warranty to be agreed upon (which, for the avoidance of doubt, shall be true and correct in all respects) on the effective date of such increase except not require any adjustment to the extent that such representations and warranties expressly relate solely Applicable Margin of other Loans pursuant to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; clause (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iiiabove) an opinion of counsel to among the Borrower and the GuarantorsRepresentative, and addressed to the Administrative Agent and the Lenders covering such matters providing the FILO Tranche so long as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute such documents any loans under the FILO Tranche shall not have any borrower other than a Borrower and agreements as shall not be guaranteed by any Subsidiary of the Administrative Agent may reasonably request Parent other than the Guarantors and the Affiliate Guarantors and shall rank pari passu (2or, at the option of the Borrower Representative, junior) in the case right of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide priority with respect 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 Laws, including without limitation, the Patriot Act.Collateral;
Appears in 1 contract
Sources: Credit Agreement (CHC Group Ltd.)
Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”may, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative AgentAgent substantially in the form of Exhibit M hereto, and each Lender, elect to request, prior to the last day of the Revolving Period, an increase to the existing Commitments (any such increase, the “New Commitments”) by an amount with the consent of the Administrative Agent in its sole discretion and subject to any internal approvals, which would increase the Facility Amount up to $400,000,000. Each such notice shall specify (i) the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Commitments shall be irrevocable once given; providedeffective and approved in writing by the Administrative Agent and (ii) the identity of each Lender or other Person (each, howeveran
(b) On any Increased Amount Date on which New Commitments are effected, that 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 any all such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any assignments and purchases, such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall Advances will be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the held by existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached Increasing Lenders ratably in accordance with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving their Commitments and after giving effect to the increase addition of Revolving Commitments) of any outstanding Revolving Loans, by making available such New Commitments to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term LoansCommitments, (ii) each New Commitment shall be equally deemed, for all purposes, a Commitment and ratably secured with the Revolving Loans each Advance made thereunder (a “New Advance”) shall be deemed, for all purposes, an Advance and Term Loans, (iii) each new Lender shall become a Lender with respect to the Commitments and all matters relating thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the New Commitments and the Increasing Lenders and (ii) in the case of Incremental Term Loanseach notice to any Lender, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Daterespective interests in such L▇▇▇▇▇’s Advances, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is each case subject to the following conditions precedent: assignments contemplated by this Section 2.21.
(xd) no Default or Event The terms and provisions of Default the New Advances shall be in existence on identical to the effective date Advances. Each Assignment and Acceptance or each Joinder Supplement, as applicable, may, without the consent of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document Lenders, effect such amendments to which such Loan Party is a party shall this Agreement and the other Transaction Documents as may be true and correct in all material respects (except necessary or appropriate, in the case opinion of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken and consented to by the Borrower (such consent not to authorize such Incremental Facility and (B) all corporatebe unreasonably withheld), partnership, member or other necessary action taken by each Guarantor authorizing to effect the guaranty provisions of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.172.21., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 1 contract
Incremental Facilities. The Borrower shall have the right at any time to request (i) increases in the aggregate amount of the Revolving Commitments (a “Revolving Commitment Increase”), (ii) increases in the aggregate amount of the 2016 Term Loans (a “2016 Term Loan Increase”) or the making 2017 Term Loans (a “2017 Term Loan Increase”) or (iii) additional tranches of incremental term loans hereunder (an “Incremental Term Loans”Loan” and together with a Revolving Commitment Increase, a 2016 Term Loan Increase and any such increase or Incremental a 2017 Term LoansLoan Increase, each an “Incremental Facility”) ), in each case to be established under this Agreement, by providing written notice thereof to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of and Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase1,600,000,000. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 10,000,000 and integral multiples of $5,000,000 in excess thereofthereof (or, in each case, in such lesser amounts as may be acceptable to the Administrative Agent and the Borrower). The ArrangersAdministrative Agent, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental FacilitiesFacility so as to achieve a syndication of such Incremental Facility reasonably satisfactory to the Administrative Agent and the Borrower, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to any such increase or Incremental Term Loans Facility and the allocations thereof of any Incremental Facility among such existing Lenders and/or other banks, financial institutions and other institutional lenders, in each case, as reasonably agreed to by the Administrative Agent and the Borrower. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment participate in any Incremental Facility or provide a new increased Revolving Commitment Commitments or Incremental Term LoansLoans hereunder, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline LenderAssignee. If a new Revolving Lender becomes a party to this Agreement, or if any existing Revolving Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Revolving Lender hereunder (or in the case of an existing Revolving Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Revolving Lenders its Revolving Commitment Percentage (determined with respect to the Revolving Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving CommitmentsCommitment Increase) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Revolving Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent:
(a) (i) any Revolving Commitment Increase shall be on the same terms as the existing Revolving Commitments in effect on the effective date of such Revolving Commitment Increase, (ii) any 2016 Term Loan Increase shall be on the same terms as the existing 2016 Term Loans in effect on the effective date of such 2016 Term Loan Increase (provided that the Borrower may pay upfront fees to the lenders providing such 2016 Term Loan Increase) and (iii) any 2017 Term Loan Increase shall be on the same terms as the existing 2017 Term Loans in effect on the effective date of such 2017 Term Loan Increase (provided that the Borrower may pay upfront fees to the lenders providing such 2017 Term Loan Increase);
(b) with respect to any Incremental Term Loan: (xi) such Incremental Term Loan shall not mature earlier than the latest maturity date of the then-existing Classes of Term Loans and Revolving Commitments without the written consent of the Requisite Class Lenders of each earlier maturing Class, and the weighted average life to maturity of any Incremental Term Loan shall be no shorter than that of the then-existing Classes of Term Loans without the written consent of the Requisite Class Lenders of each shorter lived Class of then-existing Term Loans, (ii) the interest rate margin applicable to such Incremental Term Loan will be determined by the Borrower and the lenders providing such Incremental Term Loan and (iii) except as otherwise required or permitted in clauses (i) and (ii) above, all other terms of such Incremental Term Loan shall be as agreed by the Borrower and the lenders providing such Incremental Term Loan and, taken as a whole, shall not be materially more restrictive than the terms set forth in this Agreement (except for terms applicable only after the latest Termination Date in effect at the time of incurrence of such Incremental Term Loan);
(c) such Incremental Facility shall (i) be established under this Agreement, (ii) rank pari passu in right of payment with the existing Revolving Commitments and Term Loans, (iii) be unsecured and (iv) not have any obligors other than the Loan Parties;
(d) no Default or Event of Default shall be in existence on the effective date of such increase, Incremental Facility;
(ye) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effectmateriality, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase Incremental Facility 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effectmateriality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), ) and except for changes in factual circumstances specifically and expressly permitted hereunder or waived or consented to by the Requisite Lenders in accordance with the provisions of Section 13.6.; and
(zf) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member corporate or other necessary action taken by the Borrower to authorize such Incremental Facility increase and (B) all corporate, partnership, member corporate or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facilityincrease; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters with respect to the Incremental Facility as reasonably requested by the Administrative Agent; and (iviii) except in the case of a Lender that has requested not to receive Notes, new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any such new Lenders participating in and replacement Notes executed by the Borrower, payable to any such Incremental Facilityexisting Lenders increasing their respective Revolving Commitments or Term Loans, as applicable, in each case, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans Loans, as applicable, at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental FacilityFacility pursuant to this Section 2.17, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request including amendments or joinders to this Agreement (each, an “Incremental Amendment”) and (2) in the case of any 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 Antianti-Money Laundering Lawsmoney laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Incremental Facilities. The (a) At any time and from time to time, subject to the terms and conditions set forth herein, the Administrative Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall have promptly deliver a copy of such notice to each of the right Lenders), request to request incur one or more increases in the aggregate Revolving Credit Commitments (“Incremental Revolving Credit Commitments” or the “Incremental Facilities”); -89
(b) Any Incremental Revolving Commitment shall be on terms identical to the Revolving Credit Commitments under the Revolving Credit Facility proposed to be increased thereby, including with respect to having the same Guarantors and being secured by the same Collateral on a pari passu basis with the applicable Facility subject to such increase except that the Maturity Date of an Incremental Revolving Commitment shall be no earlier (but may be later) than the Revolving Credit Commitments proposed to be increased. Unless the Incremental Revolving Commitment and the Revolving Credit Commitments proposed to be increased have different Maturity Dates, such Incremental Revolving Commitment shall be deemed a Revolving Credit Commitment of the applicable Revolving Credit Facility or both Revolving Credit Facilities, as the case may be, pursuant to the applicable Incremental Amendment (it being understood that an Incremental Facility establishing Incremental Revolving Commitments will not create a separate Revolving Credit Facility and such Incremental Revolving Commitments will be deemed a part of the applicable Revolving Credit Facility); provided, that the Applicable Rate and the Commitment Fee Rate, in each case applicable to the Revolving Credit Commitments and Revolving Credit Loans of such Revolving Credit Facility, may be increased, without the consent of any Lender, in connection with the incurrence of any Incremental Revolving Commitment such that the Applicable Rate and the Commitment Fee Rate of such Revolving Credit Commitments are identical to those of the Incremental Revolving Commitments.
(c) Each notice from any Borrower pursuant to this Section 2.14 shall set forth the requested amount of the relevant Incremental Revolving Commitments. Any Additional Lenders that elect to extend Incremental Revolving Commitments shall be reasonably satisfactory to the Administrative Borrower, and, to the extent its consent would be required with respect to an assignment to such Additional Lender under Section 10.07(b), the Administrative Agent, the Swing Line Lender and each Issuing Bank (in each case, any approval thereof not to be unreasonably withheld, delayed or the making of incremental term loans hereunder conditioned), and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Amendment. Each Incremental Facility shall become effective pursuant to an amendment (“Incremental Term Loans”, and any such increase or Incremental Term Loanseach, an “Incremental FacilityAmendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by providing written notice the Administrative Borrower, any applicable Borrowers, such Additional Lender or Additional Lenders and the Administrative Agent. No Incremental Amendment shall require the consent of any Lenders or any other Person other than the Administrative Borrower, any applicable Borrowers, the Administrative Agent and the Additional Lenders with respect to such Incremental Amendment. The Lenders hereby irrevocably authorize the Administrative Agent to enter into Incremental Amendments and, as appropriate, amendments to the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches in respect of the existing Revolving Credit Commitments and such technical amendments as may be necessary or appropriate in the opinion of the Administrative Agent, which notice the Administrative Borrower and the applicable Borrower to effect the provisions of this Section 2.14 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 10.01). In addition, if so provided in such Incremental Amendment and with the consent of the applicable Issuing Banks, participations in Letters of Credit expiring on or after the Maturity Date shall be irrevocable once given; providedre-allocated from Lenders holding Revolving Credit Commitments to Lenders holding Incremental Revolving Commitments, however, that after giving effect be deemed to any be participation interests in respect of such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans the terms of such participation interests (including the participation fees applicable thereto) shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lendersadjusted accordingly. No Lender shall be obligated in to provide any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent unless it so agrees. Revolving Credit Commitments in respect of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to any Incremental Revolving Commitments shall become Revolving Credit Commitments under this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) . The effectiveness of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day fundsIncremental Amendment (each, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any “Incremental Facility under this Section is subject Closing Date”) shall, unless otherwise agreed to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facilitythe Additional Lenders party thereto, which supplement may include such amendments be subject to this agreement as (i) the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent payment in full of the Guarantors thereto; (iii) an opinion of counsel to the Borrower all fees and the Guarantors, and addressed expenses owing to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in respect of such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.extent -90
Appears in 1 contract
Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”may, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice elect to request the establishment of one or more additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”) by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Term Loan Commitments obtained on or prior to such date). The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Term Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. Persons providing New Term Loan Commitments shall be irrevocable once givenreasonably satisfactory to the Borrower and, to the extent its consent would be required for an assignment of Loans or Commitments pursuant to Section 13.6, the Administrative Agent (not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything herein to the contrary, any New Term Loan Commitments and Loans thereunder held or to be held by Affiliated Lenders, Affiliated Institutional Lenders, Holdings, the Borrower or any Subsidiary shall be governed by the same applicable assignment and participation provisions set forth in Section 13.6 that are applicable to assignments to or purchases by such Persons (as if such Persons had taken such New Term Loan Commitments and Loans thereunder by assignment or participation). In each case, such New Term Loan Commitments shall become effective as of the applicable Increased Amount Date; provided, however, provided that (i) no Event of Default (or no Event of Default under Section 11.1 or Section 11.5 in connection with any acquisition (including any Permitted Acquisition) permitted by this Agreement or any Limited Condition Transaction described in clause (a) or (b) of the definition thereof) shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments, as applicable, and subject to Section 1.12, (ii) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and the Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement.
(b) [Reserved].
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the then existing Initial Term Loans; (iii) subject to preceding clauses (i) and (ii) as applicable, the pricing, interest rate margins, discounts, premiums, rate floors, fees, amortization schedule and participation in mandatory prepayments (which shall not be on a greater than pro rata basis than the Initial Term Loans but may be on a less than pro rata basis at the option of the Borrower and the Lenders thereunder) applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided, further that clauses (i) and (ii) shall not apply to any bridge loan, the terms of which provide for an automatic extension of the maturity date to a date that is not earlier than the Initial Term Loan Maturity Date; provided, further, that if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans by more than 0.75%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.75%; (iv) any New Term Loans and New Term Loan Commitments, to the extent secured, shall be secured only by the Collateral securing the Obligations on a pari passu or junior basis and, if on a junior basis, shall be subject to the Junior Intercreditor Agreement, and shall only be guaranteed by the Guarantors; provided that (x) any New Term Loans or New Term Loan Commitments that are unsecured or that are secured on a junior basis to the Obligations shall be documented as a separate facility pursuant to separate documentation from the Credit Documents and (y) any New Term Loans or New Term Loan Commitments that are secured on a pari passu (without regard to the control of remedies) with the Obligations but that are documented as a separate facility pursuant to separate documentation from the Credit Documents shall be subject to the Closing Date Intercreditor Agreement and the Pari Passu Intercreditor Agreement; and (v) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans, (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be (x) added for the benefit of all Lenders, (y) be applicable only after the Latest Term Loan Maturity Date or (z) reasonably satisfactory to the Required Lenders.
(e) [Reserved].
(f) Each Joinder Agreement may, without the consent of any other Lenders, effect technical and corresponding amendments to this Agreement and the other Credit Documents (including amendments in order for the New Term Loan Commitments or New Term Loans provided pursuant to such Joinder Agreement to be fungible with the existing Commitments or Loans of such Class, as applicable) as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.14.
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Incremental Facility Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the maturity date of the relevant Existing Term Loan Class (a “Permitted Other Provision”); provided that (x) the scheduled final maturity date shall be extended all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in clause (iv) of this Section 2.14(g)), and (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the maturity date of the relevant Existing Term Loan Class. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the second sentence of Section 5.1. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any Term Loan Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) [Reserved].
(iii) Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans of the existing Class or Classes subject to such Term Loan Extension Request converted into Extended Term Loans shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Term Loan Extension Request of the amount of its Term Loans of the existing Class or Classes subject to such Term Loan Extension Request that it has elected to convert into Extended Term Loans. In the event that the aggregate amount of the sum Term Loans of the Revolving Commitments plus existing Class or Classes subject to Extension Elections exceeds the principal amount of Extended Term Loans requested pursuant to the Term Loan Extension Request, Term Loans of the existing Class or Classes subject to Extension Elections shall be converted to Extended Term Loans on a pro rata basis based on the amount of Term Loans included in each such Extension Election.
(including any such Incremental Term Loansiv) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Extended Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be established pursuant to an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the final sentence of this Section 2.14(g)(iv) and notwithstanding anything to the contrary set forth in connection with any such requested increase must be an Eligible Assignee andSection 13.1, if such new Lender is assuming Revolving Commitments, must be subject to shall not require the consent of each Issuing Bank and any Lender other than the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Extending Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Extended Term Loans (iestablished thereby) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the BorrowerCredit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any Lender providing tranche of Extended Term Loans in an aggregate principal amount that is less than $10,000,000. In addition to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such Incremental Facilitytime) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14(g) and without limiting the generality or applicability of Section 13.1 to any Section 2.14 Additional Amendments, which supplement any Extension Amendment may include provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such amendments additional amendment, a “Section 2.14 Additional Amendment”) to this agreement Agreement and the other Credit Documents; provided that such Section 2.14 Additional Amendments are within the requirements of Section 2.14(g)(i) and do not become effective prior to the time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans provided for in any Extension Amendment) by such of the Lenders, Credit Parties and other parties (if any) as may be required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1.
(v) Notwithstanding anything to the Administrative Agent deems reasonably necessary or appropriate contrary contained in this Agreement, on any date on which any existing Class is converted to implement extend the related scheduled maturity date(s) in accordance with clause (i) above (an “Extension Date”), the aggregate principal amount of such Incremental Facility contemplated existing Term Loans shall be deemed reduced by this Section 2.17.an amount equal to the aggregate principal amount of Extended Term Loans so converted by such Lender on such date, and the Extended Term Loans shall be established as a separate Class of Term Loans (together with the consent of the Guarantors thereto; any other Extended Term Loans so established on such date).
(iiivi) an opinion of counsel to the Borrower and the Guarantors, and addressed to the The Administrative Agent and the Lenders covering hereby consent to the consummation of the transactions contemplated by this Section 2.14 (including, for the avoidance of doubt, payment of any interest, fees, or premium in respect of any Extended Term Loans on such matters terms as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, may be set forth in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at relevant Extension Amendment) and hereby waive the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case requirements of any Lender that is organized under the laws provision of a jurisdiction outside of the United States of Americathis Agreement (including, 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 Laws, including without limitation, the Patriot Actany pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Section 2.14.
Appears in 1 contract
Sources: Second Lien Credit Agreement (HireRight GIS Group Holdings, LLC)
Incremental Facilities. The (a) Subject to the terms and conditions set forth herein and so long as no Default or Event of Default has occurred and is continuing, the Borrower shall have the right right, at any time and from time to request time prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of (i) one or more increases to the Revolving Committed Amount (each an “Increased Revolver Commitment”) which shall constitute one and the same Facility as the existing Revolving Commitments or (ii) one or more commitments (each, an “Incremental Facility Commitment”, and together with the Increased Revolver Commitments, the “Incremental Commitments”) for term loan facilities which shall constitute a new Facility as provided in 2.22(d) below (an “Incremental Facility,” and the loans thereunder, “Incremental Loans”), up to a maximum aggregate amount of Incremental Commitments not to exceed $400,000,000; provided that, if the Collateral Event has occurred, the aggregate amount of all Incremental Commitments shall not exceed at the Revolving time any such Incremental Commitments or are entered into the making greater of incremental term loans hereunder (“x) $400,000,000 and (y) an amount such that, on a Pro Forma Basis after giving effect to such Incremental Term Loans”Commitments (and assuming such Incremental Commitments are fully drawn and/or funded, as applicable, and applied for the purpose intended) the Consolidated Net Leverage Ratio does not exceed 3.00 to 1.00.
(b) The following terms and conditions shall apply to each Increased Revolver Commitment: (i) Obligations thereunder shall constitute Credit Party Obligations and will be guaranteed (and secured, to the extent applicable) with the other Credit Party Obligations on a pari passu basis and will not be guaranteed by any obligor or secured by any assets that do not guarantee or secure, respectively, the Credit Party Obligations, (ii) each Increased Revolver Commitment shall have the same terms (including interest rate and maturity date but other than with respect to any upfront fees) as the existing Revolving Commitments, (iii) each Increased Revolver Commitment shall be entitled to the same voting rights as the existing Revolving Commitments, voting as one class, and shall be entitled to receive a pro rata share of proceeds of prepayments on the same basis as the existing Revolving Loans and shall be considered an increase to the existing Revolving Commitments, (iv) each Increased Revolver Commitment shall be obtained from existing Lenders or from other banks, financial institutions or Funds, in each case in accordance with the terms set forth below, (v) the proceeds of all Loans thereunder will be used for the purposes set forth in Section 3.11, (vi) the Borrower shall execute a Note in favor of any new Lender or any existing Lender requesting a Note whose Revolving Commitment is increased, (vii) on the effective date of each such increase or Incremental Term Loansincrease, the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (viii) each such Increased Revolver Commitment shall be in a minimum amount of $5,000,000 (and $1,000,000 increments in excess thereof), and (ix) the Administrative Agent shall have received from the Borrower (A) resolutions, legal opinions and other corporate authority documents reasonably requested by the Administrative Agent, substantially the same in form and substance as those delivered on the Closing Date pursuant to Section 4.1 and (B) updated financial projections and an “Incremental Facility”) by providing written notice officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, which notice shall be irrevocable once given; provideddemonstrating that, however, that after giving effect to such Increased Revolver Commitment and any such Incremental Facility borrowings thereunder and the aggregate amount of application thereof on a Pro Forma Basis, the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall Credit Parties will be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation compliance with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated covenants set forth in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee Section 5.9 (and, if such new Lender is assuming Revolving Commitmentsthe Collateral Event has occurred, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or condition in the case of an existing Lender, increases its Revolving Commitmentproviso set forth in Section 2.22(a)) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall exist. Any new banks, financial institutions and Funds that become Revolving Lenders that were not previously Lenders hereunder shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. In connection with the closing of any Increased Revolver Commitment, the outstanding Revolving Loans and Participation Interests shall be in existence reallocated by causing such fundings and repayments (which shall not be subject to any processing and/or recordation fees) among the Revolving Lenders (with the Borrower responsible for any costs arising under Section 2.15 resulting from such reallocation and repayments) of Revolving Loans as necessary such that, after giving effect to such Increased Revolver Commitments, each Revolving Lender will hold Revolving Loans and Participation Interests based on its Revolving Commitment Percentage (after giving effect to such Increased Revolver Commitments).
(c) The following terms and conditions shall apply to each Incremental Facility: (i) Obligations thereunder shall constitute Credit Party Obligations and will be guaranteed (and secured, to the effective date of such increaseextent applicable) with the other Credit Party Obligations on a pari passu basis and will not be guaranteed by any obligor or secured by any assets that do not guarantee or secure, respectively, the Credit Party Obligations, (yii) the representations and warranties made or deemed made each Incremental Facility shall otherwise have terms (including pricing terms) to be agreed by the Borrower and the Lenders providing the Incremental Commitments (the “Incremental Lenders”) subject to the following parameters: (A) no Incremental Facility shall mature prior to the Maturity Date applicable to the Revolving Loans, (B) mandatory prepayments customary for a term loan (which for the avoidance of doubt may include prepayments with the proceeds of non-ordinary course asset sales and “excess cash flow” (to be defined in a manner satisfactory to the Borrower and the Administrative Agent)) may be included on then-market terms, and (C) all terms of any other Loan Party in any Loan Document to which such Loan Party is a party Incremental Facility not set forth herein, shall be true reasonably satisfactory to the Administrative Agent, (iii) each Incremental Facility shall constitute a separate Facility hereunder, and correct in all material respects shall be incorporated into the Credit Documents such that the Incremental Lenders have similar rights and privileges to the Lenders, (except in the case of a representation iv) each Incremental Facility shall be obtained from existing Lenders or warranty qualified by materiality from other banks, financial institutions or Material Adverse EffectFunds, in which each case in accordance with the terms set forth below; provided that any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Facility Commitment may elect or decline, in its sole discretion, to provide such representation or warranty Incremental Facility Commitment, (v) the proceeds of each Incremental Facility will be used for the purposes set forth in Section 3.11, (vi) the Borrower shall be true and correct execute a Note in all respectsfavor of any Incremental Lender requesting a Note representing its Loans under the Incremental Facility, (vii) on the effective date of such increase except incurrence of the Incremental Loans, the conditions to the extent that such representations and warranties expressly relate solely to an earlier date (Extensions of Credit in which case such representations and warranties Section 4.2 shall have been true and correct in all material respects satisfied, (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case viii) each such representation or warranty commitment for an Incremental Facility shall be true in a minimum amount of $5,000,000 (and correct $1,000,000 increments in all respects) on and as of such earlier dateexcess thereof), and (zix) the Administrative Agent shall have received each of from the following, in form and substance satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of Borrower (A) all corporateresolutions, partnership, member or legal opinions and other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as corporate authority documents reasonably requested by the Administrative Agent; , substantially the same in form and substance as those delivered on the Closing Date pursuant to Section 4.1 and (ivB) new or replacement Revolving Notes or Term Notes executed by updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the BorrowerAdministrative Agent, payable demonstrating that, after giving effect to any Lenders participating in the borrowing of such Incremental FacilityLoans and the application thereof on a Pro Forma Basis, as applicablethe Credit Parties will be in compliance with the financial covenants set forth in Section 5.9 (and, if the Collateral Event has occurred, the condition in the amount proviso set forth in Section 2.22(a)) and no Default or Event of Default shall exist. All Incremental Lenders shall enter into such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any Lender becoming a party hereto shall (1) execute such documents and joinder agreements to give effect thereto as the Administrative Agent may reasonably request request.
(d) Notwithstanding anything to the contrary in Section 9.1 or elsewhere in this Credit Agreement, the Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary solely to incorporate the terms of each Increased Revolver Commitment or Incremental Facility therein. For the avoidance of doubt, such amendments may provide for, among other things, the incorporation of such Incremental Facility into the definitions of “Required Lenders”, “Required Facility Lenders”, “Commitment Percentage”, and (2) similar terms and sections of this Credit Agreement on a similar basis to each other existing Facility, and may provide for sharing of payments and inclusion in the case waterfall, and the inclusion of any Lender that is organized under customary provisions for a term loan throughout the laws of a jurisdiction outside of Credit Documents.
(e) Upon executing the United States of America, provide to joinder documentation requested by the Administrative Agent, its nameeach bank, address, tax identification number and/or such financial institution or other information entity committing to be a new Revolving Lender or Incremental Lender shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be necessary for bound by and entitled to the Administrative Agent benefits of this Agreement and the other Credit Documents, and shall benefit equally and ratably from the Guarantees and security interests (if applicable) created by the Security Documents, if any; provided that any Lender offered or approached to comply with “know your customer” and Anti-Money Laundering Lawsprovide all or a portion of any Increased Revolver Commitment may elect or decline, including without limitationin its sole discretion, the Patriot Actto provide such Increased Revolver Commitments.
Appears in 1 contract
Sources: Credit Agreement (Mednax, Inc.)
Incremental Facilities. The Subject to the terms and conditions set forth herein, the Borrower shall have the right right, at any time and from time to request increases in time after the Closing Date (but not to be exercised more than twice), to increase the Aggregate Revolving Commitment Amount by an aggregate amount of (the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice of up to $400,000,000 (for an Aggregate Revolving Commitment Amount of up to $1,200,000,000). The following terms and conditions shall apply to the Administrative AgentIncremental Facility: (a) the loans made under any such Incremental Facility (each an “Additional Loan”) shall constitute Credit Party Obligations and will be guaranteed with the other Loans on a pari passu basis, which notice (b) any such Incremental Facility shall be irrevocable once given; providedin the form of an increase to the existing Revolving Loan facility and shall have the same terms (including interest rate and maturity date) as the existing Revolving Loan facility, however(c) any such Incremental Facility shall be entitled to the same voting rights as the existing Loans and shall be entitled to receive proceeds of prepayments on the same basis as comparable Loans, that (d) any such Incremental Facility shall be obtained from existing Lenders or from other banks, financial institutions or investment funds (each a “New Lender”), in each case in accordance with the terms set forth below, (e) any such Incremental Facility shall be in a minimum principal amount of $100,000,000 and integral multiples of $10,000,000 in excess thereof, (f) any New Lender shall have a Commitment of at least $10,000,000, (g) the proceeds of any Additional Loan will be used in accordance with Section 3.11, (h) the Borrower shall execute such promissory notes as are necessary to reflect the Additional Loans under any such Incremental Facility, (i) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (j) the Administrative Agent shall have received an officer’s certificate of the Borrower, demonstrating that, after giving effect to any such Incremental Facility Facility, the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall Borrower will be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation compliance with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated covenants set forth in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans 5.9 and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (zk) the Administrative Agent shall have received each of from the followingBorrower such other documents as may be reasonably requested by the Administrative Agent (including, without limitation, updated financial projections and a legal opinion), in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize . Participation in any such Incremental Facility and (B) hereunder shall be offered first to each of the existing Lenders, but each such Lender shall have no obligation to provide all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty any portion of such Incremental Facility; (ii) a supplement to this Agreement executed . If the amount of the Incremental Facility requested by the Borrower, Borrower shall exceed the Administrative Agent and any Lender providing commitments which the existing Lenders are willing to provide with respect to such Incremental Facility, which supplement then the Borrower may include such amendments invite other banks, financial institutions and investment funds reasonably acceptable to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement join this Agreement as Lenders hereunder for the portion of such Incremental Facility contemplated not taken by this Section 2.17.existing Lenders, together with the consent of the Guarantors thereto; (iii) an opinion of counsel provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to the Borrower and the Guarantors, and addressed to give effect thereto as the Administrative Agent and the Lenders covering such matters as Borrower may reasonably requested by the request. The Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the BorrowerAgent is authorized to enter into, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time on behalf of the effectiveness of the applicable Incremental Facility. In connection with any Incremental FacilityLenders, any Lender becoming a party hereto shall (1) execute such documents and agreements amendment to this Agreement or any other Credit Document as may be necessary to incorporate the Administrative Agent may reasonably request and (2) in the case terms of any 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 Laws, including without limitation, the Patriot Actnew Incremental Facility therein.
Appears in 1 contract
Sources: Credit Agreement (West Corp)
Incremental Facilities. The Borrower shall have (a) At the right option of Borrowers (but subject to request increases the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate amount for all such increases of the Revolving Revolver Commitments or and the making of incremental term loans hereunder Maximum Revolver Amount not to exceed the Available Revolver Increase Amount (“Incremental Term Loans”, and any each such increase or Incremental Term Loansincrease, an “Incremental FacilityIncrease”) by providing written notice ). Agent shall invite each Lender to the Administrative Agent, which notice increase its Revolver Commitments (it being understood that no Lender shall be irrevocable once given; providedobligated to increase its Revolver Commitments) in connection with a proposed Increase at the interest margin proposed by Borrowers, howeverand if sufficient Lenders do not agree to increase their Revolver Commitments in connection with such proposed Increase, that after giving effect then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to any such Incremental Facility the aggregate Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed at least $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 5,000,000 and integral multiples of $5,000,000 in excess thereof. The ArrangersIn no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than three occasions in the aggregate for all such Increases. Additionally, for the avoidance of doubt, it is understood and agreed that in consultation with no event shall the Borrower, shall manage all aspects aggregate amount of the syndication of such Incremental Facilities, including decisions as Increases to the selection Revolver Commitments exceed $50,000,000.
(b) Each of the existing Lenders and/or other banks, financial institutions and other institutional lenders following shall be conditions precedent to be approached with respect to such increase or Incremental Term Loans any Increase of the Revolver Commitments and the allocations thereof among Maximum Revolver Amount in connection therewith:
(i) Agent or Borrowers have obtained the commitment of one or more Lenders (or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such existing Lenders and/or other banks(or prospective lenders), financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party 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 such requested increase must be an Eligible Assignee andIncrease, 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 new Lender is assuming Revolving Commitmentsother documentation as Agent shall reasonably request, must be subject in order to the consent of each Issuing Bank enable Agent and the Swingline Lender. If a new Lender becomes a party Lenders to this Agreementcomply with any of the requirements under Regulations T, U or if any existing Lender is increasing its Revolving Commitment, such Lender shall on X of the date it becomes a Lender hereunder Federal Reserve Board,
(or in the case of an existing Lender, increases its Revolving Commitmentiv) Borrowers have delivered to Agent updated pro forma Projections (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase applicable Increase) for the Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the twelve months (on a month-by-month basis) immediately following the proposed date of Revolving Commitmentsthe applicable Increase, and
(v) of any outstanding Revolving Loans, by making available The interest rate margins with respect to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) made pursuant to the aggregate amount of payments previously made by increased Revolver Commitments shall be the other same as the interest rate margin applicable to Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid Loans hereunder immediately prior to and as of such the date on such portion of the outstanding principal effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount (the date of the effectiveness of the increased Revolver Commitments and the Maximum Revolver Amount, the “Increase Date”) and shall have communicated the amount of such Revolving Loansinterest margins to Agent. The Borrower shall pay Any Increase Joinder may, with the consent of Agent, Co-Collateral Agent, Borrowers and the Lenders or prospective lenders agreeing to the proposed Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary to effectuate the provisions of this Section 2.14.
(c) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Revolving Lenders amounts payableLoans shall be deemed, if anyunless the context otherwise requires, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. include Revolving Loans made pursuant to any the increased Revolving Revolver Commitments and Maximum Revolver Amount pursuant to this Section 2.14.
(d) Each of the Lenders having a Revolver Commitment and prior to the Incremental Term Loans Increase Date (ithe “Pre-Increase Revolver Lenders”) shall rank pari passu assign to any Lender which is acquiring a new or additional Revolver Commitment on the Increase Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) participation interests in the case Letters of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence Credit on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Increase Date as shall be necessary for 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 Administrative 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 comply with “know your customer” ensure and Anti-Money Laundering Laws, including without limitation, demonstrate that the Patriot ActLiens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such new Revolver Commitments and Maximum Revolver Amount.
Appears in 1 contract
Sources: Credit Agreement (INFINERA Corp)
Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall have make, obtain or increase the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and their Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with Commitments (any such requested increase must be an Eligible Assignee and, if such new Lender is assuming increased Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of “Incremental Revolving Commitments) of any outstanding Revolving Loans”), as applicable, by making available executing and delivering to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to Increased Facility Activation Notice specifying (Ai) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment increase and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term LoansFacility or Facilities involved, (ii) shall be equally the applicable Increased Facility Closing Date and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (xw) shall not mature earlier than the applicable Incremental Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of amortization schedule for such increaseIncremental Term Loans, (y) the Applicable Margin for such Incremental Term Loans and (z) whether such Incremental Term Loans shall be Incremental Tranche A Term Loans or Incremental Tranche B Loans; provided, that
(i) 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 Incremental Equivalent Debt and the outstanding principal amount (or committed amount, if applicable) of any Term Loans or Revolving Commitments, shall not exceed $1,300,000,000;
(ii) immediately prior to and after giving effect to any Incremental Facility Activation Notice (and 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;
(iii) the Borrower shall be in compliance, on a pro forma basis (including giving pro forma effect to any Incremental Facility Activation Notice (and 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)), 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 Borrower for which financial statements are available;
(iv) each of the representations and warranties made or deemed made by the Borrower and any other Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects(except that any Loan Document 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) immediately prior to and after giving effect to any Incremental Facility Activation Notice (and the making of any Incremental Term Loans or Incremental Revolving Commitments pursuant thereto), unless stated to relate to a specific earlier date, in which case, such Loan Party is a party representations and warranties shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date;
(v) any Incremental Term Loans designated by the Borrower as Incremental Tranche A Term Loans shall have amortization customary for tranche A term loans;
(vi) the weighted average life to maturity of any Incremental Tranche A Term Facility shall be no earlier than the weighted average life to maturity of the Tranche A Term Facility;
(vii) (A) the weighted average life to maturity of any Incremental Tranche B Term Facility shall be no earlier than the weighted average life to maturity of the Tranche B Term Facility and (B) prior to the final maturity of the Tranche B Term Loans, the aggregate amount of the scheduled principal installments in respect of any Incremental Tranche B Term Loans shall not, for any four consecutive fiscal quarters, exceed 1% of the aggregate principal amount of such Incremental Term Loans on the date such Loans were first made;
(viii) 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 but excluding any arrangement, underwriting, structuring or similar fee paid by the Borrower and not paid to Lenders generally)) in respect of any Incremental Tranche A Term Loans or Tranche B Term Loans exceeds the total yield for the existing Tranche A Term Loans or existing Tranche B Term Loans, as the case may be, by more than 0.50% (it being understood that any such increase may take the form of original issue discount (“OID”), and (z) with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the Tranche A Term Loans or the Tranche B Term Loans, as the case may be, shall have received each be increased so that the total yield in respect of such Incremental Tranche A Term Loans or Incremental Tranche B Term Loans is no more than 0.50% higher than the total yield for the existing Tranche A Term Loans or Tranche B Term Loans, as the case may be (provided that any increase in yield to any existing Term Loans required due to the application of a Eurocurrency Rate floor or an ABR floor on any Incremental Term Facility shall be effected solely through an increase in (or implementation of, as applicable) a Eurocurrency Rate floor or ABR floor to the applicable existing Term Loans);
(ix) 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 followingCollateral with the Tranche A Term Loans, the Tranche B Term Loans and the Revolving Loans;
(x) except as set forth in form and substance Section 2.25(a)(iii), all terms of any Incremental Term Facility, if not consistent with the applicable existing 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 Term Facility unless the Borrower and the lenders in respect of such Incremental Term Facility elect lesser payments;
(ixi) if not previously delivered (A) any Incremental Revolving Commitments and the Revolving Loans in respect thereof shall be pursuant to the terms hereof otherwise applicable to the Revolving Facility and such Incremental Revolving Commitments shall become Revolving Commitments under this Agreement after giving effect to such Incremental Facility Activation Notice;
(xii) without the consent of the Administrative Agent, copies certified by the Secretary or Assistant Secretary (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $20,000,000 and (Ay) all corporate, partnership, member or other necessary action taken no more than five Increased Facility Closing Dates may be selected by the Borrower after the Closing Date; and
(xiii) no Lender shall have any obligation to authorize such Incremental Facility and participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(Bb) all corporateAny additional bank, partnership, member financial institution or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrowerentity which, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; Borrower and the Administrative Agent (iiiwhich consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.25(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit G-3, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the Revolving Facility, the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an opinion amount determined by reference to the amount of counsel each Type of Loan (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 on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurocurrency Tranche requested to be so borrowed or effected 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 Borrower and the Guarantorsrelevant 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 addressed to terms of the Incremental Term Loans evidenced thereby. Any such amendment may be effected in writing by the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; Borrower and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide furnished 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 Laws, including without limitation, the Patriot Actparties hereto.
Appears in 1 contract
Incremental Facilities. (a) The Borrower shall have may by written notice to the right Administrative Agent enter into one or more increases to request increases in the aggregate amount existing Revolving Credit Commitments and/or to the Letters of the Revolving Commitments or the making of incremental term loans hereunder Credit Maximum Amount (each such increase, an “Incremental Term LoansCommitment”, and any each such increase or Incremental Term Loansfacility, an “Incremental Facility”) by providing written in an aggregate amount not in excess of $100,000,000 and in addition as otherwise permitted under this Agreement pursuant to the requirements of Section 6.06(p). Each such notice shall specify (i) the date (each, an “Incremental Effective Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative AgentAgent and (ii) the identity of each Eligible Assignee that is a commercial bank to whom the Borrower proposes any portion of such Incremental Commitments be allocated and the amounts of such allocations; provided that any existing Lender may be approached to provide all or a portion of the Incremental Commitments and may elect or decline, which notice in its sole discretion, to provide such Incremental Commitment. Each Incremental Commitment shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the in an aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including $5,000,000 or any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount whole multiple of $25,000,000 and integral multiples of $5,000,000 500,000 in excess thereof. The Arrangers, in consultation with Each Incremental Commitment that increases the Borrower, Letters of Credit Maximum Amount shall manage all aspects also increase the amount of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect Revolving Credit Commitments by an amount corresponding to such increase or Incremental Term Loans in the Letters of Credit Maximum Amount and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender increased amount shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made provided by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of relevant Lender making such date on such portion of the outstanding principal amount of such Revolving LoansIncremental Commitment. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) Commitments shall be equally and ratably secured with effected by a joinder agreement (the Revolving Loans and Term Loans, (iii“Incremental Joinder”) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent Agent, each Issuing Bank and any each Lender providing making such Incremental FacilityCommitment, which supplement may include in form and substance reasonably satisfactory to each of them. Notwithstanding the provisions of Section 10.02, the Incremental Joinder may, without the consent of any other Lenders, effect such amendments to this agreement Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent deems reasonably necessary Agent, to effect the provisions of this Section 2.23. In addition, unless otherwise specifically provided herein, all references in Loan Documents to Revolving Credit Loans or appropriate Letters of Credit shall be deemed, unless the context otherwise requires, to implement include references to Revolving Credit Loans or Letters of Credit made pursuant to Incremental Commitments, respectively, made pursuant to this Agreement. This Section 2.23 shall supersede any provisions in Section 2.17 or Section 10.02 to the contrary.
(b) The Incremental Commitments shall become effective as of the Incremental Effective Date; provided that:
(A) each of the conditions set forth in the relevant Incremental Joinder shall be satisfied;
(B) each of the conditions set forth in Section 4.02 shall be satisfied;
(C) on a pro forma basis (assuming that such Incremental Facility contemplated by this Section 2.17.Commitments are fully drawn or utilized), together the Borrower shall be in compliance with the consent each of the Guarantors thereto; covenants set forth in Section 5.02 as of the end of the latest fiscal quarter;
(iiiD) an opinion the Borrower shall make any breakage payments in connection with any adjustment of counsel Revolving Credit Loans pursuant to Section 2.15(d);
(E) the Borrower shall deliver or cause to be delivered officer’s certificates and legal opinions of the type delivered on the Closing Date to the Borrower and the Guarantorsextent reasonably requested by, and addressed to the Administrative Agent in form and the Lenders covering such matters as substance reasonably requested by satisfactory to, the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.and
Appears in 1 contract
Incremental Facilities. The Borrower (a) At any time during the period from and after the Closing Date through but excluding the date that is one year prior to the Maturity Date, at the option of Borrowers (but subject to the conditions set forth in clause (b) below), the Revolver Commitments and the Maximum Revolver Amount may be increased by an amount in the aggregate for all such increases of the Revolver Commitments and the Maximum Revolver Amount not to exceed the Available Increase Amount (each such increase, an “Increase”). Agent shall have 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 right interest margin proposed by ▇▇▇▇▇▇▇▇▇, and if sufficient Lenders do not agree to request increases increase their Revolver Commitments in connection with such proposed Increase, then Agent or Borrowers may invite any prospective lender who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with a proposed Increase. Any Increase shall be in an amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. In no event may the Revolver Commitments and the Maximum Revolver Amount be increased pursuant to this Section 2.14 on more than 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 Revolving Increases to the Revolver Commitments exceed $15,000,000.
(b) Each of the following shall be conditions precedent to any Increase of the Revolver Commitments and the Maximum Revolver Amount:
(i) Agent or Borrowers have obtained the making commitment of incremental term loans hereunder one or more Lenders (“Incremental Term Loans”, or other prospective lenders) reasonably satisfactory to Agent and Borrowers to provide the applicable Increase and any such increase Lenders (or Incremental Term Loansprospective lenders), an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; provided, however, that after giving effect to any such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term LoansBorrowers, and any new Lender becoming Agent have signed a party 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 such requested increase must be an Eligible Assignee andIncrease, 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 new Lender is assuming Revolving Commitmentsother documentation as Agent shall reasonably request, must be subject in order to the consent of each Issuing Bank enable Agent and the Swingline Lender. If a new Lender becomes a party Lenders to this Agreementcomply with any of the requirements under Regulations T, U or if any existing Lender is increasing its Revolving Commitment, such Lender shall on X of the date it becomes a Lender hereunder Board of Governors,
(or in the case of an existing Lender, increases its Revolving Commitmentiv) (and as a condition theretoiii) purchase from the other Lenders its Revolving Commitment Percentage Borrowers have delivered to Agent updated pro forma Projections -162- LEGAL_US_W # 114834644.8114834644.17 (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitmentsapplicable Increase) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to Loan Parties and their Subsidiaries evidencing compliance on a pro forma basis with Section 7 for the four quarters (Aon a quarter by quarter basis) immediately following the portion proposed date of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus applicable Increase (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and calculated as of such date on such portion of a Covenant Testing Period was in effect during the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Term Loans, (ii) shall be equally and ratably secured with the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier dateentire four quarter period), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.-163- LEGAL_US_W # 114834644.8114834644.17
Appears in 1 contract
Sources: Credit Agreement (Sharecare, Inc.)
Incremental Facilities. (a) The Borrower shall have the right to request increases in the aggregate amount of the Revolving Commitments Company may on one or the making of incremental term loans hereunder (“Incremental Term Loans”more occasions, and any such increase or Incremental Term Loans, an “Incremental Facility”) by providing written notice to the Administrative Agent, which notice shall be irrevocable once given; providedrequest (i) during the Revolving Commitment Period, howeverthe establishment of Incremental Revolving Commitments and/or (ii) the establishment of Incremental Term Loan Commitments, provided that after giving effect to any such Incremental Facility the aggregate amount of all the sum Incremental Commitments established hereunder shall not exceed US$1,200,000,000. Each such notice shall specify (A) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the Incremental Revolving Commitments or the Incremental Term Loan Commitments, as applicable, being requested (it being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or the Incremental Term Loan Commitments may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or the Incremental Term Loan Commitments 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 Lender, each Issuing Bank).
(b) The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments plus the principal amount and Loans and other extensions of Term Loans (including credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans. The terms and conditions of any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Loan Commitments and Incremental Term Loans shall to be made at thereunder shall be, except as otherwise set forth herein or in the time Borrower requests such increase. Each such applicable Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The ArrangersAssumption Agreement, in consultation with the Borrower, shall manage all aspects identical to those of the syndication Tranche B Term Loan Commitments and the Tranche B Term Loans; provided that (i) the weighted average life to maturity of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or any Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever no shorter than the remaining weighted average life to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion maturity of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and Tranche B Term Loans, (ii) no Incremental Term Loan Maturity Date shall be equally and ratably secured with earlier than the Revolving Loans and Term Loanslatest Maturity Date then in effect, (iii) in the case of Weighted Average Yield applicable to any Incremental Term Loans, (x) Loans shall not mature earlier 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 Tranche B Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior plus 0.50% per annum unless the Applicable Rate with respect to the Tranche B Term Loan Maturity Date, Loans is increased so as to cause the then applicable Weighted Average Yield under this Agreement on the Tranche B Term Loans to equal the Weighted Average Yield then applicable to such Incremental Term Loans minus 0.50% per annum and (iv) all terms and conditions of any Incremental Term Loan Commitments and Incremental Term Loans (other than those set forth in clauses (i) through (iii)), to the extent not consistent with the terms of the Tranche B Term Loan Commitments and the Tranche B Term Loans, shall be treated substantially reasonably acceptable to the same (Administrative Agent. Any Incremental Term Loan Commitments established pursuant to an Incremental Assumption Agreement that have identical terms and in any event not more favorably than) the Revolving Loans. Effecting conditions, and any Incremental Facility under Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Section is subject Agreement.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Assumption Agreements executed and delivered by the following conditions precedent: Company, each Incremental Lender providing such Incremental Commitments and the Administrative Agent but only if (xi) no Default or Event of Default shall have occurred and be in existence continuing on the effective date of effectiveness thereof, both immediately prior to and immediately after giving effect to such increaseIncremental Commitments and the making of the Loans and other Credit Extensions thereunder to be made on such date, (yii) on the date of effectiveness thereof, the representations and warranties made or deemed made by the of each Borrower and any each other Loan Credit Party set forth in any Loan Document to which such Loan Party is a party 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 (respects, in each case on and as of such date, except in the case of a any such representation or and warranty qualified by materiality or Material Adverse Effectthat specifically relates to an earlier date, in which case such representation or and warranty shall be so true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), (iii) after giving effect to such Incremental Commitments and (z) the Administrative Agent shall have received each making of Loans and other Credit Extensions thereunder to be made on the following, in form date of effectiveness thereof and substance satisfactory to the Administrative Agent: (i) if not previously delivered such other customary adjustments as are reasonably acceptable to the Administrative Agent, copies certified by the Secretary or Assistant Secretary Company shall be in compliance on a pro forma basis (determined in accordance with Section 1.2(c)) with the financial covenants set forth in Sections 6.1 and 6.2 as of the date of effectiveness thereof, (Aiv) all corporate, partnership, member or other necessary action taken by the each applicable Borrower shall make any payments required to authorize be made pursuant to Section 2.17(c) in connection with such Incremental Facility Commitments and the related transactions under this Section 2.24 and (Bv) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement Company shall have delivered to this Agreement executed by the Borrower, 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 Lender providing such transaction. Each Incremental FacilityAssumption Agreement may, which supplement may include without the consent of any Lender, effect such amendments to this agreement Agreement and the other Credit Documents as the Administrative Agent deems reasonably may be necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17.appropriate, together with in the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and , to give effect to the provisions of this Section 2.24.
(ivd) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of 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 Incremental Facility. In connection with any Incremental FacilityClass) hereunder, any Lender becoming a party hereto and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (1or Lenders in respect of Commitments and Loans of the applicable Class) execute such documents hereunder and agreements as shall be bound by all agreements, acknowledgements and other obligations of Lenders (or Lenders in respect of Commitments and Loans of the Administrative Agent may reasonably request applicable Class) hereunder and under the other Credit Documents, and (2ii) in the case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the event such Incremental Lender that is organized under already has a Revolving Commitment, shall increase) the laws Revolving Commitment of a jurisdiction outside 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 United States term “Revolving Commitment”. For the avoidance of Americadoubt, provide 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.
(e) On the Administrative Agentdate of effectiveness of any Incremental Revolving Commitments, its nameeach Revolving Lender shall assign to each Incremental Revolving Lender holding such Incremental Revolving Commitment, addressand each such Incremental Revolving Lender shall purchase from each Revolving Lender, tax identification number and/or at the principal amount thereof (together with accrued interest), such other information interests in the Revolving Loans and participations in Letters of Credit outstanding on such date as shall be necessary for 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 Pro Rata Shares after giving effect to the effectiveness of such Incremental Revolving Commitment.
(f) Subject to the terms and conditions set forth herein and in the applicable Incremental Assumption Agreement, each Incremental Term Lender holding an Incremental Term Loan Commitment of any Series shall make a loan to the Company in an amount equal to such Incremental Term Loan Commitment on the date specified in such Incremental Assumption Agreement.
(g) The Administrative Agent shall notify Lenders promptly upon receipt by the Administrative Agent of any notice from the Company referred to comply with “know your customer” in Section 2.24(a) and Anti-Money Laundering Lawsof the effectiveness of any Incremental Commitments, including without limitationin each case advising the Lenders of the details thereof and, in the Patriot Actcase of effectiveness of any Incremental Revolving Commitments, of the Pro Rata Shares of the Revolving Lenders after giving effect thereto and of the assignments required to be made pursuant to Section 2.24(e).
Appears in 1 contract
Incremental Facilities. The (a) Pursuant to the terms and subject to the conditions hereof, after the Eighth Amendment Effective Date, the Borrower shall have may request, from any Lender or any New Lender, with at least 10 Business Days’ (or such shorter period as may be agreed by the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“Incremental Term Loans”, and any such increase or Incremental Term Loans, an “Incremental Facility”Administrative Agent) by providing prior written notice to the Administrative Agent, which notice shall (i) new term loans under one or more new term loan credit facilities to be irrevocable once given; provided, however, that after giving effect to included in this Agreement (the “New Term Loan”) and/or (ii) increases in the amount of Revolving Commitments (any such Incremental Facility new commitments, collectively, the aggregate amount of “New Revolving Commitments” and, any loans made thereunder, the sum of the “New Revolving Commitments plus the principal amount of Term Loans (including any such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers”, in consultation together with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental New Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee andthe “New Loans”), if such new Lender is assuming Revolving Commitments, must be subject to the consent proceeds of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenderswhich, in same day fundseach case, an amount equal to may be used for general corporate purposes (A) the portion such increase of the outstanding principal amount of the Loans or Commitments, a “Facility Increase”).
(b) The terms of such New Term Loans, the New Revolving Commitments or New Revolving Loans, as the case may be, shall be determined by the Borrower and the applicable Lenders or New Lenders providing such New Loans or New Revolving Commitments; provided, that:
(i) such New Term Loans shall (A) have a final maturity no earlier than the Latest Maturity Date and a Weighted Average Life to be purchased by such Lender, plus Maturity no shorter than the remaining Weighted Average Life to Maturity of any existing Series of Term Loans; (B) the aggregate amount of payments previously made have Applicable Rates and amortization schedules determined by the other Revolving Borrower and the Lenders under Section 2.4.(j) that have not been repaid, plus or New Lenders with respect thereto; and (C) interest accrued otherwise be on terms, to the extent not identical to the terms of the initial Term Loans, reasonably satisfactory to the Administrative Agent and unpaid the Borrower; and
(ii) such New Revolving Commitments and New Revolving Loans shall be identical to the Revolving Commitments and the Revolving Loans.
(c) In connection with any Facility Increase after the Eighth Amendment Effective Date, such Facility Increase (when aggregated with any outstanding New Loans or New Revolving Commitments) shall be in an aggregate principal amount not in excess of (i) $100,000,000 plus (ii) $200,000,000 which, in the case of this clause (ii), shall be available solely on the Eleventh Amendment Effective Date; provided, that each request for New Loans or New Revolving Commitments shall be for a minimum amount of the lesser of (x) $5,000,000 and (y) the entire amount that may be requested under this Section 2.18(c).
(d) The terms of any New Loans shall be established pursuant to an amendment to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each applicable Lender or New Lender providing such New Loans and the Administrative Agent (each such amendment, an “Incremental Amendment”). Each such Incremental Amendment and all other documentation in respect of such New Loans shall be reasonably satisfactory to the Administrative Agent and the Borrower. The Administrative Agent and the Borrower shall determine the effective date on such portion of (the outstanding principal amount “Incremental Effective Date”) of such Revolving LoansIncremental Amendment, which shall be promptly notified to the Lenders. Upon the Incremental Effective Date, each applicable Lender or New Lender providing any Incremental Loan shall become a “Lender”, and such Incremental Loan shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Borrower and Administrative Agent shall pay agree to the Revolving Lenders amounts payablesuch procedures, if any, as are necessary to such Revolving Lenders under accomplish the purposes of this Section 5.42.18.
(e) No Lender shall be obligated to provide any New Loans or unless it so agrees in its sole discretion. as The Administrative Agent may elect or decline to arrange any New Loans in its sole discretion.
(f) The repayment (other than in connection with a result of scheduled repayment or a repayment at maturity) and the prepayment of any such New Term Loans shall be made on a pro rata basis with all other outstanding Term Loans and the repayment (other than in connection with a repayment at maturity) and the prepayment of any New Revolving Loans shall be made on a pro rata basis with all other outstanding Revolving Loans; provided, that if the applicable Lenders providing such New Loans so agree, such Lenders may participate on a less than pro rata basis in any repayment or prepayment hereunder. Revolving Loans made pursuant On any Incremental Effective Date, subject to any increased Revolving Commitment the satisfaction of the terms and the Incremental Term Loans conditions set forth in this Section 2.18, (i) each of the existing Revolving Lenders shall rank pari passu assign to each of the New Revolving Lenders, and each of the New Revolving Lenders shall purchase from each of the existing Revolving Lenders, at the principal amount thereof (together with accrued interest), such interests in right of payment with the New Revolving Commitments outstanding on such Incremental Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans Commitments will be held by existing Revolving Lenders and Term LoansNew Revolving Lenders ratably after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments.
(g) No Incremental Amendment shall become effective unless all of the following conditions are met:
(i) Each of the conditions precedent set forth in Section 4.02 are satisfied as of the date of such Incremental Amendment (including the condition that as of the date of such Incremental Amendment, no event shall have occurred and be continuing or would result from the consummation of such Incremental Amendment that would constitute a Default or an Event of Default);
(ii) each Incremental Amendment shall be equally contain a representation and ratably secured with warranty by the Revolving Loans and Term Loans, (iii) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loans and (y) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (iv) shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) Borrower that the representations and warranties made or deemed made by of (A) the Borrower contained in Article 3 and any (B) each Loan Party contained in each other Loan Party Document or in any Loan Document to which such Loan Party is a party shall be document furnished at any time under or in connection herewith or therewith are true and correct in all material respects (except in the case without duplication of a representation or warranty qualified by any materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respectsqualifier contained therein) on and as of the effective date of such increase Incremental Amendment, except to the extent that such representations and warranties expressly relate solely specifically refer to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effectdate, in which case such representation or warranty they shall be true and correct in all respects) on and as of such earlier date), and ;
(ziii) the Administrative Agent Loan Parties shall have received each of reaffirm their respective obligations under the following, in form and substance Collateral Documents pursuant to an agreement reasonably satisfactory to the Administrative Agent: ;
(iiv) if not previously requested by the Administrative Agent, constituent documents of the Loan Parties, resolutions (or equivalent authorization) of each Loan Party’s board of directors (or equivalent body) or shareholders (or equivalent), as applicable, approving such Incremental Amendment shall be delivered to the Administrative AgentAgent and an opinion or opinions of counsel reasonably satisfactory to the Administrative Agent as to the enforceability of the Incremental Amendment, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by as amended thereby and such of the other Loan Documents (if any) as may be amended thereby; and
(v) the Borrower, the Administrative Agent and each applicable Lender shall execute and deliver to the Administrative Agent any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement documentation as the Administrative Agent deems shall reasonably necessary or appropriate specify to implement evidence the transaction contemplated by such Incremental Facility contemplated by this Section 2.17Amendment., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.
Appears in 1 contract
Sources: Revolving Credit Agreement and Incremental Agreement (Palantir Technologies Inc.)
Incremental Facilities. (a) The Borrower and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall have make, obtain or increase the right to request increases in the aggregate amount of the Revolving Commitments or the making of incremental term loans hereunder (“their Incremental Term Loans”, Loans (which may be effected by increasing the amount of any then existing Facility) by executing and any delivering to the Administrative Agent an Incremental Term Loan Activation Notice specifying (v) the amount of such increase or Incremental Term Loans, an “(w) the applicable Incremental Facility”) by providing written Term Loan Closing Date (which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent, which notice Agent (or such earlier date as shall be irrevocable once given; providedagreed by the Administrative Agent)), however(x) the applicable Incremental Term Loan Maturity Date, that after giving effect to any (y) the amortization schedule for such Incremental Facility the aggregate amount of the sum of the Revolving Commitments plus the principal amount of Term Loans and (including any z) the Applicable Margin for such Incremental Term Loans) shall not exceed $650,000,000. The allocation of any increase between the Revolving Commitments and Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 and integral multiples of $5,000,000 in excess thereof. The Arrangers; provided, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and the allocations thereof among such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender shall be obligated in any way whatsoever to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder that (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect to the Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (Bi) the aggregate amount of payments previously made by all Incremental Term Loans established on any date shall not exceed (x) an amount equal to the other Revolving Lenders under Section 2.4.(jBase Incremental Amount on such date and (y) that have not been repaid, plus (C) interest accrued and unpaid an additional amount subject to and the Maximum Incremental Amount as of such date on such portion of the outstanding date, (ii) each Incremental Term Facility shall be in a minimum aggregate principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable$25,000,000, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and (iii) the Incremental Term Loans in respect of any Incremental Term Facility and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are (iA) shall rank guaranteed on a pari passu basis with all of the other Obligations under this Agreement and the other Loan Documents and (B) secured by the Collateral (and no other property) and the Liens on the Collateral securing such Incremental Term Loans and all other obligations in right of payment respect thereof shall be pari passu with the Revolving Loans Liens on the Collateral securing all of the other Obligations under this Agreement and Term Loansthe other Loan Documents, (iiiv) shall the Incremental Term Loans in respect of any Incremental Term Facility will be equally and ratably secured with entitled to prepayments on the Revolving same basis as the Term B Loans and unless the applicable Incremental Term LoansLoan Activation Notice specifies a lesser treatment, (iiiv) in such Incremental Term Loans shall have a final maturity no earlier than the case Latest Maturity Date (determined immediately prior to incurrence of such Incremental Term Loans), (xvi) the weighted average life to maturity of such Incremental Term Facility shall not mature earlier be no shorter than the that of any existing Term Loans (except if required in order to make such Incremental Term Loans fungible with any outstanding Term Loans), (vii) the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors) and (ysubject to clauses (v) shall have no amortization or otherwise be permitted to be prepaid prior to the Term Loan Maturity Date, and (ivvi) above) amortization schedule applicable to such Incremental Term Facility shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject to the following conditions precedent: (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made determined by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such 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 (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (z) the Administrative Agent shall have received each of the following, in form and substance 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, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender providing such Incremental Facility, which supplement may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent of the Guarantors thereto; (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Act.providing such
Appears in 1 contract
Incremental Facilities. (a) The Parent Borrower shall have may, by written notice to the right Administrative Agent at any time, on one or more occasions, request to request increases in (i) add one or more new tranches of term facilities and/or increase the aggregate principal amount of the Revolving Commitments Term Loans, any Incremental Term Loans or the making of incremental any Specified Refinancing Term Loans by requesting new term loans hereunder commitments to be added to such Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”, and ) and/or (ii) add one or more new tranches of incremental revolving facilities and/or increase the principal amount of any such increase or tranche of incremental revolving facilities (each, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate amount not to exceed the Incremental Amount. Such notice shall set forth (i) the amount of the Incremental Term Loans and/or Incremental Revolving Commitments being requested (which shall be (x) with respect to Incremental Term Loans denominated in dollars, in minimum increments of $15,000,000, and with respect to Incremental Term Loans denominated in an Alternative Currency, in minimum increments of the Dollar Equivalent of $7,500,000, (y) with respect to Incremental Revolving Commitments denominated in dollars, in minimum increments of $10,000,000, and with respect to Incremental Revolving Commitments denominated in an Alternative Currency, in minimum increments of the Dollar Equivalent of $5,000,000 or (z) equal to the remaining Incremental Amount) and (ii) the date, which shall be a Business Day, on which such Incremental Term Loans are requested to be made and/or Incremental Revolving Commitments are requested to become effective (the “Increased Amount Date”) pursuant to an Incremental Facility Activation Notice.
(b) Incremental Loans may be provided by any existing Lender (it being understood each existing Lender shall have no obligation to participate in any Incremental Facility), or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent and Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Facility”Facilities if such consent would be required under Section 10.04(b) by for an assignment of Loans to such Additional Lender.
(c) The creation or provision of any Incremental Facility or Incremental Loan shall not require the approval of any existing Lender other than any existing Lender providing written notice all or part of any Incremental Facility or Incremental Loan.
(d) The applicable Borrower and each Lender or Additional Lender providing a portion of the Incremental Facilities shall execute and deliver to the Administrative Agent, which notice Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Facilities of such Lender or Additional Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving Commitments to be made thereunder; provided that (i) the final maturity date of any Incremental Term Loan (x) that is a “term loan A” shall be irrevocable once given; providedno earlier than the Latest Maturity Date with respect to Term A Loans and (y) that is a “term loan B” shall be no earlier than the Latest Maturity Date with respect to Term B Loans, however, (ii) the weighted average life to maturity of any Incremental Term Loan (x) that after giving effect is a “term loan A” shall be no shorter than the remaining weighted average life to any such Incremental Facility the aggregate amount maturity of the sum then-existing Term A Loans and (y) that is a “term loan B” shall be no shorter than the remaining weighted average life to maturity of the Revolving Commitments plus then-existing Term B Loans, in each case calculated as of the principal amount date of Term Loans (including any making such Incremental Term LoansLoan, (iii) such Incremental Facilities may be pari passu or subordinated in right of payment with respect to the Loans outstanding (or made on) the Vion Acquisition Closing Date and/or pari passu or subordinated in right of security with respect to such Loans (and to the extent so subordinated, the holders of such indebtedness or a representative thereof will enter into a customary intercreditor agreement with the Loan Parties and the Administrative Agent evidencing such subordination) or may be unsecured (it being understood any such Indebtedness incurred in reliance on the Incremental Amount shall not exceed $650,000,000. The allocation be deemed to be “Total Indebtedness secured by a Lien” for purposes of calculating the Secured Leverage Ratio set forth therein, regardless of whether secured or unsecured), (iv) any increase between the Revolving Commitments and prepayment (other than scheduled amortization payments) of Incremental Term Loans shall be made at the time Borrower requests such increase. Each such Incremental Facility must be an aggregate minimum amount of $25,000,000 on a pro rata basis with all then existing Term Loans (and integral multiples of $5,000,000 in excess thereof. The Arrangers, in consultation with the Borrower, shall manage all aspects of the syndication of such Incremental Facilities, including decisions as to the selection of the other then-existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such increase or Incremental Term Loans and Specified Refinancing Term Loans requiring ratable prepayment), except that the allocations thereof among Borrower and the lenders in respect of such existing Lenders and/or other banks, financial institutions and other institutional lenders. No Lender Incremental Term Loans shall be obligated permitted, in their sole discretion, to elect to prepay or receive, as applicable, any way whatsoever prepayments on a less than pro rata basis (but not on a greater than pro rata basis), (v) the maturity date or commitment reduction date of any Incremental Revolving Loan shall be no earlier than the Latest Maturity Date with respect to increase its Revolving Commitment or provide a new Revolving Commitment or Incremental Term Loans, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee and, if such new Lender is assuming Revolving Commitments, must be subject (vi) from the Effective Date, if the initial yield over the applicable base rate (such calculation for both the Incremental Facility and the applicable Credit Facility, to include the upfront fees, any interest rate floors (only to the consent of each Issuing Bank and the Swingline Lender. If a new Lender becomes a party to this Agreement, or if any existing Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Lender hereunder (or in the case of an existing Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Lenders its Revolving Commitment Percentage (determined with respect extent greater than that applicable to the Lenders’ respective Revolving Commitments Credit Facility then in effect) and after giving effect to the increase of Revolving Commitmentsany OID (as defined below) of but excluding any outstanding Revolving Loansarrangement, by making available underwriting or similar fee paid to the Administrative Agent for Agent, the account of such other Lenders, Commitment Parties under the Credit Facilities or relevant Persons under the Incremental Facility) in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by the other Revolving Lenders under Section 2.4.(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Lenders under Section 5.4. as a result of the prepayment respect of any such Revolving Loans. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (i) shall and/or Incremental Revolving Commitments that rank pari passu in right of payment or with respect to security with the Revolving Loans relevant Credit Facilities incurred on the Vion Acquisition Closing Date and Term Loansmaturing on (or with respect to any “term loan B”, on or after) the maturity date of the existing applicable Credit Facility exceeds the initial yield for such existing applicable Credit Facility by more than 50 basis points (ii) it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), the Applicable Margin for the existing applicable Credit Facility, to the extent it is pari passu in right of payment or security with such applicable Incremental Facility, shall be equally and ratably secured with increased so that the Revolving Loans and Term Loans, (iii) initial yield in the case respect of such Incremental Term LoansLoans and/or Incremental Revolving Commitments is no more than 50 basis points higher than the initial yield for the existing applicable Credit Facility and (vii) to the extent an Incremental Revolving Facility is structured as an additional revolving facility under this agreement and not as an increase to the existing Revolving Commitment hereunder, (x) no more than three revolving facilities (including any revolving facility constituting Specified Refinancing Debt, shall not mature earlier than the Term Loans be outstanding hereunder at any one time) and (y) shall have no amortization or otherwise be permitted the Administrative Agent may, in its reasonable discretion, take such actions as it deems advisable to be prepaid prior allocate Letters of Credit and any participations therein between any revolving facilities. All terms and documentation with respect to Incremental Facilities which differ from those with respect to the Term Loan Maturity Date, and (iv) Loans under the existing applicable Credit Facility shall be treated substantially the same (and in any event not more favorably than) the Revolving Loans. Effecting any Incremental Facility under this Section is subject reasonably satisfactory to the following conditions precedent: Administrative Agent (x) no Default or Event of Default shall be in existence on the effective date of such increase, (y) the representations and warranties made or deemed made by the Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase except to the extent permitted by clauses (i) through (vii) above). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrowers to effect the provisions of or be consistent with this Section 2.20. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) but without the consent of any other Lenders, and furnished to the other parties hereto.
(e) Notwithstanding the foregoing, no Incremental Term Loan may be made and no Incremental Revolving Commitment shall become effective under this Section 2.20 unless (i) on the date on which such Loan is made or of such effectiveness, (A) the conditions set forth in Section 4.04 shall be satisfied (it being understood that such representations all references to “the occasion of any Borrowing” in Section 4.04 shall be deemed to refer to the Increased Amount Date) and warranties expressly relate solely to an earlier date (B) the Parent Borrower is in which case such representations compliance with the Financial Covenants on a Pro Forma Basis, and warranties the Administrative Agent shall have been true received a certificate to that effect dated such date and correct in all material respects executed by a Financial Officer of the Parent Borrower, (except in the case of a representation or warranty qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date), and (zii) the Administrative Agent shall have received each legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Effective Date under Section 4.01; provided that if the proceeds of the followingan Incremental Facility are to be used to finance a Permitted Acquisition, in form and substance satisfactory to the Administrative Agent: (i) if not previously delivered extent agreed to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all corporate, partnership, member or other necessary action taken by the Borrower to authorize such Incremental Facility and (B) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Incremental Facility; (ii) a supplement to this Agreement executed by the Borrower, the Administrative Agent and any Lender lenders providing such Incremental Facility, which supplement customary “SunGard” conditionality (including making determinations pursuant to the Permitted Acquisition Determination Method) may include such amendments to this agreement as the Administrative Agent deems reasonably necessary or appropriate to implement such Incremental Facility contemplated by this Section 2.17., together with the consent be implemented in lieu of the Guarantors thereto; conditions set forth in this clause (iii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iv) new or replacement Revolving Notes or Term Notes executed by the Borrower, payable to any Lenders participating in such Incremental Facility, as applicable, in the amount of such Revolving Lender’s Revolving Commitment or aggregate Term Loans at the time of the effectiveness of the applicable Incremental Facility. In connection with any Incremental Facility, any 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 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 Laws, including without limitation, the Patriot Acte).
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