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

Appears in 3 contracts

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

Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental L/C Commitments in an amount such that, after giving effect thereto, (i) the ~~aggregate amount of~~ Aggregate Incremental ~~Commitments established at or prior to such time~~ Amount does not exceed ~~$100,000,000~~the L/C Cap. Such notice shall set forth (i) the amount of the Incremental L/C Commitments being requested (which shall be in minimum increments of $~~500,000~~ 100,000 and a minimum amount of $~~5,000,000),~~ 1,000,000) and (ii) the date on which such Incremental L/C Commitments are requested to become effective (which shall not be less than 10 5 Business Days nor more than 60 days after the date of such notice (or such ~~longer or~~ shorter ~~period~~ periods as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental L/C Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental L/C Commitment and the issuance of the Letters of Credit that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental ~~Commitments,~~ L/C Commitment and (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental L/C Commitments and the ~~Incremental Term Loans or Incremental Revolving Loans~~ Letters of Credit issued thereunder shall comply with Section 2.25(c). (c) ~~Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement.~~ The terms of the Incremental ~~Term Loans~~ L/C Commitments and the Letters of Credit issued pursuant thereto shall be determined by the Borrower and the applicable Incremental ~~Term Lenders~~ Issuing Bank and set forth in an Additional Credit Extension Amendment (including any applicable conditions for the ~~applicable Incremental Assumption Agreement~~issuance of a Letter of Credit); provided that (i) the ~~final maturity date of any~~ Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans L/C Commitments will rank pari passu ~~with (or junior to) the Tranche B Term Loans~~ in right of payment and with respect to security with the Tranche B Term Loans and ~~the borrower and guarantors~~ none of the ~~Incremental Term Loans~~ obligors or guarantors with respect thereto shall be a Person that is not a Credit Party; provided that the ~~same~~ foregoing shall not prohibit the posting of cash collateral to secure the Letters of Credit issued pursuant to such Incremental L/C Commitments, (ii) any L/C Disbursement may participate on a pro rata basis, greater than pro rata basis or less than pro rata basis in any voluntary or mandatory prepayments or commitment reductions hereunder, as specified in the ~~Borrower~~ applicable Additional Credit Extension Amendment and ~~Guarantors~~ (iii) the L/C Commitments may be cancelled and/or terminated on a non-pro rata basis with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental L/C Commitments, the Borrower, the Administrative Agent and each applicable Incremental ~~Lender~~ Issuing Bank shall execute and deliver to the Administrative Agent an ~~Incremental Assumption Agreement providing for such Incremental Commitments,~~ Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental L/C Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption AgreementIssuing Bank. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each ~~Incremental Assumption Agreement~~Additional Credit Extension Amendment. Any ~~Incremental Assumption Agreement~~ Additional Credit Extension Amendment may, without consent of any other Lender, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments ~~necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments~~ as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment and implementation of ~~such new Class~~ the L/C Commitments and any other technical amendments as may be necessary or ~~tranche~~appropriate (as reasonably determined by the Administrative Agent and the Borrower) in connection with the foregoing, in each case on terms consistent with this Section 2.25. (e) ~~Upon each increase~~ This Section 2.25 shall supersede any provisions in ~~the Revolving Credit Commitments pursuant to this~~ Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect 2.17 or Section 9.08 to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencecontrary.

Appears in 2 contracts

Sources: Credit Agreement (Walter Investment Management Corp), Credit Agreement (Walter Investment Management Corp)

Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Loan Commitments in an amount ~~such that~~not to exceed, ~~after giving effect thereto~~together with all Incremental Loan Commitments provided to the Borrower pursuant to this Section 2.24 (whether or not utilized), the ~~aggregate amount~~ Incremental Loan Amount from one or more Incremental Lenders, all of ~~Incremental Commitments established at or prior to such time does not exceed $100,000,000~~which must be Eligible Assignees. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $~~500,000~~ 2,500,000 and a minimum amount of $~~5,000,000)~~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 (ii) the date (an “Increased Amount Date”) on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such ~~longer or shorter period~~ other number of days as the Administrative Agent ~~shall agree~~may agree to)), . (~~iii~~b) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Loan Commitments from existing Lenders (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 unreasonably withheld or delayed) (any such additional bank, financial institution or other institutional lender, an “Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), ~~then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such~~ who will become Incremental ~~Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth~~ Lenders in ~~clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent~~connection therewith. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent The Borrower and each ~~applicable~~ Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement ~~providing for such Incremental Commitments,~~ and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender or Additional Lender. ~~Any~~ The terms and provisions of the Incremental ~~Assumption Agreement may include conditions for delivery~~ Loans shall be identical to those of ~~opinions of counsel and other documentation consistent with~~ the ~~conditions set forth in Section 4.02, all~~ Revolving Loans. All Incremental Loan Commitments shall be documented solely as an increase to the ~~extent reasonably requested by~~ 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 Lenders or any arranger appointed in connection therewith in connection with such increase to the ~~Administrative Agent~~ Revolving Credit Commitments on or prior to the ~~other parties to such Incremental Assumption Agreement~~Increased Amount Date in respect thereof. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. ~~Any Incremental Assumption Agreement may~~Each of the parties hereto hereby agrees that, ~~without consent~~ 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 2.24 unless, on the date of such effectiveness, (i) the conditions set forth in Sections 4.01(b), 4.01(c) and 4.01(d) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (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 Incremental Lenders) legal opinions, board resolutions and other ~~Lender~~closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02, ~~effect~~ (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such ~~amendments~~ Incremental Loan Commitments and (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~~ 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 ~~necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments~~ reasonably necessary to ~~establish the~~ ensure that all Incremental ~~Term Loan Commitments and Incremental Term~~ Loans, when originally made, are included in each Borrowing of outstanding Revolving Loans as on a ~~new Class or tranche of Term Loans and such other technical amendments as~~ pro rata basis. This may be ~~necessary or appropriate in~~ accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the ~~reasonable opinion~~ date of each Incremental Loan. Any conversion of Eurodollar Loans to ABR Loans required by the ~~Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this~~ preceding sentence shall be subject to Section ~~2.25~~2.15. (e) ~~Upon~~ On any Increased Amount Date on which Incremental Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~increase in~~ of the existing Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned Lenders shall assign to each of the Incremental ~~Revolving Credit Lender in respect of such increase~~Lenders, and each ~~such~~ of the Incremental ~~Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion~~ Lenders shall purchase from each of ~~such~~ the existing Revolving Credit ~~Lender’s~~ Lenders, at the principal amount thereof, such interests in the outstanding Revolving Loans and participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit and Swing Line Loans outstanding on such ~~that~~Increased Amount Date that will result in, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Revolving Loans and participations ~~hereunder~~ in Letters of Credit and Swing Line Loans being held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the existing Revolving Credit Lenders ~~according to~~ and Incremental Lenders ratably in accordance with their Revolving Credit ~~Percentages (~~Commitments after giving effect to the ~~increase in~~ addition of such Incremental Loan Commitments to the Revolving Credit Commitments), ~~which prepayment~~ (ii) each Incremental Loan Commitment shall be ~~accompanied by accrued interest on~~ deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and have the same terms as any existing Revolving Loan, and (iii) each Incremental Lender shall become a Lender with respect to the Revolving Credit Commitments and all matters relating thereto. (f) The proceeds of any Incremental Loans ~~being prepaid and any costs incurred by any Revolving Credit Lender~~ shall be used for the purposes specified in ~~accordance with Section 2.16. The Administrative Agent and~~ the ~~Lenders hereby agree that the minimum borrowing~~introductory statement to this Agreement, ~~pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply~~ to the ~~transactions effected pursuant to~~ extent permitted under the ~~immediately preceding sentence~~Agreement.

Appears in 2 contracts

Sources: Credit Agreement (Tallgrass Energy GP, LP), Credit Agreement (Tallgrass Energy GP, LP)

Incremental Facilities. ~~(a) The~~ At any time prior to the Revolving Termination Date, the Borrower may, by ~~written~~ notice to the Administrative Agent ~~from time~~ (each such notice, a “New Term Loan Facility Notice”), which New Term Loan Facility Notice shall promptly be delivered by the Administrative Agent to ~~time~~each Lender, request ~~Incremental Commitments~~ the addition of one or more tranches of term loans hereto and related commitments in ~~an amount~~ respect thereof (the “New Term Loan Commitments”); provided, however, that both (x) at the time of any such ~~that,~~ request and (y) after giving effect ~~thereto, the aggregate amount of Incremental Commitments established at or prior~~ to any such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental New Term Loan Commitments, ~~whether such Incremental Term Loan Commitments are commitments to make additional Term Loans~~ the borrowing of ~~any then outstanding Class or commitments to make Term Loans~~ term loans associated therewith and the use of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) proceeds thereof, no Default or Event of Default shall exist and the Borrower shall be in compliance with each financial covenant set forth in Section 7.1 (calculated, in the case of clause (y), as of the date of the effectiveness of such New Term Loan Commitments and the borrowing of term loans associated therewith on a pro forma basis to give effect to such borrowing and the use of proceeds thereof). The New Term Loan Commitments shall (i) be in an aggregate principal amount not in excess of $250,000,000 but in no event less than $100,000,000 for any single tranche of term loans, (ii) rank pari passu in right of payment and of security with the other Loans, (iii) mature not earlier than the date that is one year after the Revolving Termination Date and amortize in an amount not greater than 1% per annum for each year other than the final year thereof, (iv) be used solely to finance acquisitions (including, without limitation, associated fees and expenses, the refinancing of any indebtedness in connection with such acquisition, and the refinancing of any equity or other financing used as a deposit or other interim funding to effect such acquisition) that have ~~occurred and~~ been approved by the Required Lenders (the determination of “Required Lenders” to be ~~continuing~~ made immediately prior to ~~or immediately after~~ giving effect to such ~~Incremental~~ New Term Loan Commitments), (iiv) ~~the Total Leverage Ratio, determined on a Pro Forma Basis~~ have such pricing and other terms (~~assuming that all Incremental Commitments have been fully funded~~ including mandatory prepayment provisions and ~~without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii~~call protection and/or premiums) ~~the representations and warranties set forth in Article III and in each other Loan Document shall~~ as may reasonably be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined agreed by the Borrower and the ~~Incremental~~ Persons providing such New Term ~~Lenders and set forth in~~ Loan Commitments (each, a “New Term Loan Lender”), provided, that the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors yield with respect to the New Term ~~Loans,~~ Loan Commitments (ivtaking into account upfront fees and original issue discount paid to New Term Loan lenders) if may be no more than 0.25% per annum greater than the ~~All~~then-~~in Yield on such Incremental~~ current yield with respect to the Loans (as reasonably determined by the Administrative Agent) at the time the New Term ~~Loans exceeds the initial All-in Yield~~ Loan Facility Amendment (as defined below) becomes effective pursuant to its terms (it being understood that all levels of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically Pricing Grid will be increased by and/or additional fees will be paid to the ~~Yield Differential~~Lenders, ~~effective upon the making of such Incremental Term Loans and (v)~~ as applicable, to the extent necessary to satisfy such requirement), and (vi) otherwise be treated hereunder substantially the same as (and in any event no more favorably than) the Facility, provided, that the terms of and provisions applicable to the ~~Incremental~~ New Term Loan Commitments may provide for financial or other covenants different or in addition to those applicable to the Loans only to the extent that such terms and provisions are ~~inconsistent with~~ applicable only during periods after the ~~terms~~ Revolving Termination Date. The New Term Loan Facility Notice shall (x) set forth ~~herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to~~ the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental requested amount of New Term Loan Commitments, (y) offer each Lender the ~~Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver~~ opportunity to provide a New Term Loan Commitment by giving written notice of such to the Administrative Agent prior to the termination of the general syndication of the New Term Loan Commitments and (z) be provided to each existing Lender not less than five Business Days prior to the commencement of the general syndication of the New Term Loan Commitments; provided, however, that no existing Lender will be obligated to subscribe for any portion of such New Term Loan Commitments. Each New Term Loan Commitment shall become a Commitment under this Agreement and the facility for the New Term Loan Commitments shall be implemented hereunder pursuant to an ~~Incremental Assumption~~ amendment to this Agreement, which may take the form of an amendment and restatement of this Agreement ~~providing for such Incremental Commitments~~(a “New Term Loan Facility Amendment”), executed by each of the Borrower, each other Loan Party, each New Term Loan Lender and ~~such other documentation as~~ the Administrative ~~Agent~~ Agent, which New Term Loan Facility Amendment will not require the consent of any other Lender. The effectiveness of any New Term Loan Facility Amendment shall ~~reasonably specify~~ (in addition to ~~evidence~~ any other conditions specified therein) be subject to the ~~Incremental Commitment~~ satisfaction on the date thereof and, if different, on the date on which the New Term Loan Commitments are funded, of each ~~Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery~~ of ~~opinions of counsel and other documentation consistent with~~ the conditions set forth in Sections 5.1(h) and (o) and Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.255.2. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 2 contracts

Sources: Revolving Credit Agreement (CKX, Inc.), Revolving Credit Agreement (CKX, Inc.)

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

Appears in 2 contracts

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

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

Appears in 2 contracts

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

Incremental Facilities. (a) ~~The~~ Provided there exists no Default or Event of Default, and subject to the conditions set forth in clause (f) below, the Borrower ~~may~~may at any time or from time to time after the Closing Date, by ~~written~~ notice to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), request ~~Incremental~~ (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 total amount of the Commitments (each an “Additional Term Commitment”) and any Loans advanced pursuant to such Additional Term Commitments being Term Loans 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 Additional Term Commitments not to exceed $20,000,000 or a lesser amount in integral multiples of $5,000,000. (i) Each New Term Loan Facility (A) shall rank pari passu in right of payment with the 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 Loan 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 entitled 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 event that such interest rate exceeds the interest rate relating to the Term Loan A 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 ~~that~~incremental fees shall be paid to, ~~after giving effect thereto~~or such better terms shall be offered to, the ~~aggregate amount~~ Term Loan A Lenders, and (iv) all other terms of ~~Incremental~~ such New Term Loans, if not consistent with the terms of the Term Loans, (A) will be as agreed between the Borrower and the New Lenders providing such New Term Loans and (B) shall 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 ~~established at or prior~~ shall have the same terms and conditions as the Term Loans applicable thereto. (d) Each notice from the Borrower pursuant to ~~such time does not exceed $100,000,000. Such notice~~ this Section 2.10 shall set forth (i) with respect to any Additional Term Commitments, the requested amount of such 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 ~~the Incremental~~ OID or upfront fees payable in connection with such Additional Term Commitments ~~being requested (which shall be in minimum increments of $500,000~~ and ~~a minimum amount of $5,000,000),~~ (ii) with respect to any New Term Loan Facility, the requested amount of New Term Loans, the proposed terms of the relevant New Term Loan Facility and the proposed effective date ~~on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ for the ~~date~~ making of such ~~notice~~ New Term Loan Facility (the “New Term Loan Effective Date” and together with any Additional Commitment Effective Date, the “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 any New Term Loan or provide any Additional Term Commitment) or by any other bank or other financial institution (any such ~~longer~~ other bank or ~~shorter period as~~ other financial institution being called a “New Lender”); provided any such New Lenders shall be reasonably acceptable to the Administrative Agent ~~shall agree)),~~ and the Borrower. (~~iii~~e) ~~whether such Incremental~~ Commitments ~~are Incremental Revolving Credit Commitments or Incremental~~ in respect of New Term ~~Loan Commitments and~~ Loans (~~iv) in the case of any request for Incremental~~ “New Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date”) and ~~(iv) the terms of such Incremental Commitments and the Incremental~~ Additional Term ~~Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental~~ Commitments shall ~~be established~~ become Commitments under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the ~~Borrower~~ Borrower, each New Lender, any other Lender providing a New Term Loan or Additional Term Commitment and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. ~~Any~~ The Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other Lender, effect such amendments to this Agreement (including amendments to Schedule IA or IB) and the other Loan Documents as may be ~~necessary or appropriate~~necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.162.10. The Administrative Agent may take any and ~~the Lenders hereby agree~~ all action as may be reasonably necessary to ensure that ~~the minimum borrowing~~any Term Loans made pursuant to any Additional Term Commitment, when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata ~~borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence~~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 may~~On one or more occasions at any time after the Closing Date, the Obligors may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request an increase to the existing Commitments (any such increase, ~~request~~ the “Incremental Commitments” and the loans made thereunder, the “Incremental Loans”) in an aggregate amount not to exceed $300,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Obligors propose that such Incremental Commitments ~~in an amount such that~~shall be effective, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than ten (ii10) Business Days (or such shorter period as may be agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent. Incremental Commitments ~~are requested~~ may be provided by any existing Lender (it being understood that no existing Lender shall have an obligation to ~~become effective~~ make, or provide commitments with respect to, an Incremental Loan) or by any other Person (~~which shall not be less than 10 Business Days nor more than 60 days after the date~~ each, an “Incremental Lender”); provided that any such Incremental Lender to whom any portion of such ~~notice (or such longer or shorter period as~~ Incremental Commitment shall be allocated shall be subject to the approval of the Borrower, the Administrative ~~Agent shall agree))~~Agent, ~~(iii) whether~~ the Issuing Banks and the Swingline Lender unless such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from Lender is an existing ~~Lenders~~ Lender (each of which approvals shall not be unreasonably withheld, conditioned or delayed). The terms and provisions of any Incremental Commitments shall be ~~entitled~~ identical to ~~agree or decline to participate in its sole discretion) or any Additional Lender~~the existing Commitments. (b) ~~It shall be a condition precedent to the~~ The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment ~~that~~ shall be subject to the satisfaction of the following conditions precedent: (i) immediately prior to and after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, no Default or Event of Default shall ~~have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments,~~ exist; (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties ~~set forth~~ made or deemed made by the Obligors in Article III ~~and in each other Loan Document~~ hereof shall be true and correct in all material respects on the Increased Amount Date except to the extent that such representations and warranties expressly relate solely to an earlier date (or in which case such representations and warranties shall have been true and correct in all ~~respects, if qualified as to materiality)~~ material respects on and as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another date, such other~~ earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents; (iii) the Administrative Agent shall have received one or more Additional Credit Extension Amendments, providing for Incremental Commitments in the amount of such increase; and (iv) the Administrative Agent shall have received an opinion of counsel to the Loan Parties (in substantially the same form as delivered on the Closing Date which may at the option of the Borrower be delivered by internal counsel of the Loan Parties), and addressed to the Administrative Agent and the Lenders. (c) On each Increased Amount Date, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders and Incremental Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Commitments to the Commitments, (b) each Incremental Commitment shall be deemed for all purposes a Commitment and each Loan made thereunder shall be deemed, for all purposes, a Loan and (c) each Incremental Lender shall become a Lender with respect to its Incremental Commitment and all matters relating thereto. (d) The Administrative Agent shall notify the Lenders promptly upon receipt of notice of each Increased Amount Date and in respect thereof (y) the Incremental Commitments and the Incremental ~~Term Loans or Incremental~~ Lenders, and (z) in the case of each notice to any existing Lender, the respective interests in such ▇▇▇▇▇▇’s Revolving ~~Loans thereunder shall comply with Section 2.25(c)~~Loans, in each case subject to the assignments contemplated by this Section. (ce) ~~Incremental Commitments shall be established pursuant~~ Any upfront fees payable to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of~~ the Incremental ~~Term Loans~~ Lenders shall be determined by the Borrower and the applicable Lenders. (f) The Incremental ~~Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans~~ Commitments shall be ~~no earlier than~~ effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the ~~Latest Maturity Date~~Obligors, ~~(ii) the average life to maturity of~~ the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment Lender and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving Credit Commitment (~~, and ~~the Incremental Revolving Loans thereunder)~~ each of which shall be ~~implemented as an increase to~~ recorded in the ~~Total Revolving~~ Register. Each Additional Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Extension Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.04. (eg) Upon each increase in the ~~Revolving Credit~~ Commitments pursuant to this ~~Section ‎2.25,~~ Section, (i) each ~~Revolving Credit~~ Lender ~~with a Revolving Credit Commitment~~ immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental ~~Revolving Credit Lender in respect of such increase~~Lender, and each such Incremental ~~Revolving Credit~~ Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing Revolving Credit Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (1) participations hereunder in Letters of Credit and (2) participations hereunder in Swingline Loans held by each ~~Revolving Credit~~ Lender ~~(including each such Incremental Revolving Credit Lender)~~ will equal ~~its Revolving Credit Percentage. If~~the percentage of the aggregate Commitments of all Lenders represented by such ▇▇▇▇▇▇’s Commitments; and (ii) if, on the date of such increase, there are ~~any~~ Revolving Loans then outstanding, the Borrower shall prepay such Revolving Loans ~~shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from~~ (and pay any additional amounts required pursuant to Section 2.15 in connection therewith) with the proceeds of ~~additional~~ Revolving Loans ~~made hereunder so that~~ from the Incremental Lender(s) to the extent necessary in order that, after giving effect to such prepayments and borrowings, all Revolving Loans ~~are thereafter~~ will be held ratably by the ~~Revolving Credit~~ Lenders ~~according to~~ (including the Incremental Lender(s)) in accordance with their ~~Revolving Credit Percentages (~~respective Commitments after giving effect to the ~~increase in Revolving Credit Commitments~~applicable Incremental Commitment(s)~~, which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16~~. The Administrative ~~Agent~~ Agent, the Issuing Banks and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this Section 2.04(g). (h) Any upfront fees payable to the ~~immediately preceding sentence~~Incremental Lenders shall be determined by the Borrower and the applicable Lenders.

Appears in 2 contracts

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

Incremental Facilities. (a) The Lead Borrower may, from time to time after the Third Restatement Effective Date, by ~~written~~ notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as whereupon the Administrative Agent shall ~~agree)~~promptly deliver a copy to each of the Lenders), request one or more tranches of term loans hereunder (~~iii~~collectively, the “Incremental Term Loans”) ~~whether such Incremental Commitments are~~ or one or more additional tranches of revolving commitments hereunder (collectively, the “Incremental Revolving ~~Credit Commitments or~~ Commitments” and, together with any Incremental Term ~~Loan Commitments and (iv) in~~ Loans, the ~~case of any request for~~ “Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment Facilities”); provided that (i) both at the time of any such request and at the time that any such Incremental Facilities are entered into, no Default or Event of Default shall have occurred and be continuing ~~immediately prior to~~ or ~~immediately after giving effect to such Incremental Commitments~~would result therefrom, (ii) the ~~Total Leverage Ratio~~aggregate amount of such Incremental Facilities, ~~determined on a Pro Forma Basis (assuming that~~ taken together with all Incremental ~~Commitments have been fully funded~~ Facilities previously incurred pursuant to this Section 2.20 and ~~without netting~~ the ~~proceeds~~ aggregate amount of ~~any Incremental Loans)~~Commitment Increases made pursuant to Section 2.19, ~~shall~~ does not exceed ~~2.75:1.00~~$500,000,000, (iii) the ~~representations and warranties set forth~~ final stated maturity date of such tranche of Incremental Facilities shall not be earlier than the Maturity Date in ~~Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of~~ effect at the ~~date~~ time such Incremental ~~Commitments become effective (or if such representation and warranty relates to another date~~Facilities are entered into, ~~such other date) and~~ (iv) such tranche of Incremental Facilities shall rank pari passu in right of payment with the ~~terms of~~ Revolving Loans, (v) such Incremental ~~Commitments~~ Facilities shall not be, and shall not be permitted to be, guaranteed by any Subsidiary of Parent that is not a Guarantor under this Agreement and (vi) the terms, conditions and documentation governing such Incremental ~~Term Loans~~ Facilities (including, without limitation, all representations, covenants, defaults, guaranties and remedies, but excluding economic terms), taken as a whole, shall be substantially the same as, or less favorable to the Lenders or Additional Lenders (as defined below) providing such Incremental Facilities, than those terms and conditions applicable to the Lenders with respect to the Revolving Loans ~~thereunder shall comply with Section 2.25(c~~(except for covenants or other provisions applicable only to periods after the latest Maturity Date of the Revolving Loans). Incremental Facilities shall, at the election of the Lead Borrower, be available in dollars or in one or more Alternative Currencies. (cb) Each notice from the Lead Borrower pursuant to clause (a) of this Section 2.20 shall set forth the requested amount and, in reasonable detail, the proposed terms of the relevant Incremental ~~Commitments~~ Facilities. Incremental Facilities may be made by any existing Lender or by any Eligible Assignee (any such Eligible Assignee providing such Incremental Facilities at such time being called an “Additional Lender” and, together with the existing Lenders providing such Incremental Facilities at such time, the “Incremental Lenders”). Incremental Facilities shall be established pursuant to an amendment, restatement or amendment and restatement (an “Incremental ~~Assumption Agreement~~Amendment”) ~~relating to~~ of this ~~Agreement. The terms of~~ Agreement and, as appropriate, the other Loan Documents, executed by Parent, each Borrower, each Incremental ~~Term Loans shall be determined by the Borrower~~ Lender and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving Credit Commitment (and~~ , in each case without the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other ~~Lender,~~ Person. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section ~~2.25~~2.20. The Incremental Amendment may, ~~including any amendments necessary to establish~~ at the ~~Incremental Term Loan Commitments~~ discretion of each Additional Lender, (i) contain an indication of the status of such Additional Lenders as relevant for United Kingdom Tax purposes, as contemplated in Section 2.16(g)(ii), and/or (ii) contain the DTTP Scheme reference number and ~~Incremental Term Loans~~ jurisdiction of tax residence of such Additional Lender, as ~~a new Class or tranche of Term Loans~~ contemplated in Section 2.16(g)(i)(B) and ~~such other technical amendments as may be necessary or appropriate~~ in the ~~reasonable opinion~~ definition of “UK Borrower DTTP Filing”. The Lenders hereby irrevocably authorize the Administrative Agent ~~and~~ to enter into such Incremental Amendments. The effectiveness of any Incremental Amendment shall be subject to (x) the ~~Borrower~~ satisfaction of the conditions as the parties thereto shall agree, provided that no such Incremental Amendment shall modify or waive any condition to the incurrence of Incremental Facilities except in ~~connection~~ accordance with Section 9.2 hereof, (y) the ~~establishment~~ receipt by the Administrative Agent of ~~such new Class~~ documents substantially consistent with those delivered on the Third Restatement Effective Date pursuant to Section 4.1(e) (or ~~tranche~~the equivalent, if any, in the applicable jurisdiction) as to the corporate power and authority of each ~~case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant~~ Borrower to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations borrow hereunder ~~in outstanding Letters of Credit such that,~~ after giving effect to ~~each~~ such ~~deemed assignment~~ Incremental Amendment and ~~assumption~~ (z) in the case of ~~participations~~an Incremental Amendment to which an Eligible Assignee is party as an Additional Lender, the ~~percentage~~ consent (not to be unreasonably withheld or delayed) of the ~~aggregate outstanding participations~~ Administrative Agent, and, solely in the case of Incremental Revolving Commitments, the Swingline Lender and each Issuing Bank. Nothing contained in this Section 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to provide Incremental Facilities, at any time. (c) The entry into any Incremental Facilities hereunder ~~in Letters of Credit held~~ shall require and shall be deemed to be a representation and warranty by each ~~Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If,~~ Borrower on the date on which such Incremental Facilities are entered into that the conditions set forth in this Section 2.20 to the establishment of Incremental Facilities and in Section 4.2 have been satisfied as of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencedate.

Appears in 2 contracts

Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)

Incremental Facilities. (a) ~~The~~ So long as no Event of Default exists or would arise therefrom, the Borrower ~~may~~shall have the right, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time after the Closing Date to (i) request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement and/or increase the principal amount of any Class of Term Loans (each, ~~request~~ an “Incremental Term Facility” and, collectively, the “Incremental Term Loan Commitments”) and/or (ii) increase the Total Revolving Commitment (each, an “Incremental Revolving Facility” and, such commitments, the “Incremental Revolving Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Commitments” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”) so long as the aggregate outstanding principal amount of all unutilized Incremental Commitments ~~in an amount such~~ and Incremental Loans does not exceed the Incremental Amount; provided that, after giving pro forma effect ~~thereto~~to any Incurrence or discharge of Indebtedness on the date the applicable Incremental Commitment Agreement becomes effective (subject to Section 1.3) and all related transactions as if completed on the first day of the twelve (12)-month period ending on the most recent Test Date, the ~~aggregate amount of Incremental Commitments established at~~ 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 such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental ~~Commitments are requested to~~ Commitment shall become effective ~~(which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ to the Administrative Agent ~~shall agree~~certifying that the Borrower is in compliance with this Section 4.17)~~), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or~~ . Any Incremental Term Loan Commitment Incurred in the form of increases to any Class of existing Term Loans shall be identical to (other than (x) with respect to “original issue discount” or upfront fees and (y) any increase to the scheduled amortization payments applicable to any Class of Term Loans necessary to make such Incremental Term Loan fungible with any Class of existing Term Loans) and form part of such Term Loans. Any Incremental Revolving Commitments shall be Incurred in the form of increases to the Revolving Commitments and shall be identical to (ivother than with respect to upfront fees) and form part of such Revolving Facility. (b) Each request from the Borrower pursuant to this Section 4.17 shall set forth the requested amount and proposed terms of the relevant Incremental Commitments. The Incremental Commitments (or any portion thereof) may be made by any existing Lender or by any other bank or financial institution (any such bank or other financial institution, an “Additional Lender”) subject, (i) in respect of any Additional Lender not already a Lender hereunder or an affiliate of a Lender hereunder, to the Borrower’s consent (such consent not to be unreasonably withheld or delayed) and (ii) in the case of any ~~request for~~ Incremental ~~Term Loan Commitments, whether~~ Revolving Commitments (if such ~~Incremental Term Loan Commitments are commitments to make additional Term Loans of~~ Additional Lender is not already a Lender hereunder or any ~~then outstanding Class or commitments to make Term Loans~~ affiliate of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (vLender hereunder) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent ~~of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion~~ of the Administrative Agent ~~and the Borrower,~~ (such consent not to ~~effect the provisions~~ be unreasonably withheld or delayed). Any allocation of ~~this Section 2.25, including~~ any ~~amendments necessary~~ Incremental Commitments to ~~establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may~~ any Affiliated Lender shall be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect subject to the ~~increase in Revolving Credit Commitments~~terms of Section 11.6(g), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (OPENLANE, Inc.)

Incremental Facilities. (a) The Lead Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the ~~aggregate amount~~ Aggregate Incremental Amount does not exceed the Incremental Cap (or, in the case of Incremental Commitments ~~established~~ in connection with a Limited Condition Acquisition incurred pursuant to clause (y) of the definition thereof, at ~~or prior~~ the election of the Borrower, the Aggregate Incremental Amount, after giving effect to ~~such time~~ the Incremental Commitments, does not exceed ~~$100,000,000~~the Incremental Cap on the date the definitive acquisition agreement for such Limited Condition Acquisition is entered into). Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $~~500,000~~ 1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such ~~longer or~~ shorter ~~period~~ periods as the Administrative Agent shall agree)), ) and (iii) whether such Incremental Commitments are Incremental Revolving ~~Credit~~ Commitments or Incremental Term ~~Loan Commitments and (iv) in the case of any request for Incremental Term Loan~~ Commitments~~, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class~~. The Lead Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment and the incurrence of any Incremental Term Loans that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental ~~Commitments~~Commitment or the incurrence of such the Incremental Term Loans, as applicable (or, in the case of Incremental Commitments or Incremental Loans in connection with a Limited Condition Acquisition, no Default or Event of Default exists as of the date the definitive acquisition agreement for such Limited Condition Acquisition is entered into), (ii) (x) the ~~Total Leverage Ratio~~Parent is in compliance with the Financial Covenants, determined as of the fiscal quarter of the Parent most recently ended for which financial statements have been delivered pursuant to Section 7.01 and on an Incremental Pro Forma Basis or (y) in the case of Incremental Commitments or Incremental Loans in connection with a Limited Condition Acquisition, the Parent is in compliance with the Financial Covenants as herein provided on the date the definitive acquisition agreement for such Limited Condition Acquisition is entered into, determined on a Pro Forma Basis ~~(assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ as of ~~any Incremental Loans), shall not exceed 2.75:1.00~~such date, (iii) in the case of Incremental Commitments or Incremental Loans in connection with a Limited Condition Acquisition, solely to the extent required by the lenders providing such Incremental Commitments or Incremental Loans, as applicable, the representations and warranties set forth in Article ~~III~~ 6 and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving ~~Credit~~ Lender) will equal its ~~Revolving Credit~~ Aggregate Commitment Percentage. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall upon the effectiveness of such Incremental Revolving ~~Credit~~ Commitment be prepaid from the proceeds of ~~additional~~ the Incremental Revolving Credit Loans made hereunder so that ~~the~~ Revolving Credit Loans are thereafter held by the Revolving Credit Lenders according to their ~~Revolving Credit Percentages~~ Aggregate Commitment Percentage (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section ~~2.16~~3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. For the avoidance of doubt, it is acknowledged and agreed that Section 5.02 hereof shall not be applicable to the incurrence of Incremental Commitments or Incremental Loans pursuant to Section 2.18 hereof.

Appears in 1 contract

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

Appears in 1 contract

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

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

Appears in 1 contract

Sources: Incremental Facilities Agreement (Avis Budget Group, Inc.)

Incremental Facilities. (a) The Borrower may, at any time after the Effective Date but prior to the Termination Date in respect of the applicable Facility, by written notice to the Administrative ~~Agent from time to time~~Agent, request ~~Incremental Commitments~~ an increase in the Revolving Credit Facility or the Term Facility (each such facility increase being a "FACILITY INCREASE") in an aggregate principal amount not to exceed $75,000,000 for all Facility Increases, each of which to be effective as of a date that is at least 90 days prior to the scheduled Termination Date then in effect in respect of the applicable Facility (for each such ~~that~~Facility Increase, ~~after giving effect thereto~~the "INCREASE DATE") as specified in the related notice to the Administrative Agent; provided, however, that (i) in no event shall any Facility Increase be in a principal amount of less than $15,000,000 (or such lesser amount as shall be approved by the Administrative Agent) nor shall the aggregate amount of ~~Incremental Commitments established at~~ all Facility Increases exceed $75,000,000; (ii) there shall be no more than four (4) Facility Increases (or ~~prior~~ such greater number as shall be approved by the Administrative Agent); (iii) on the Increase Date, the applicable conditions set forth in Section 3.02 and in clause (d) of this Section 2.17 shall be satisfied; (iv) on the Increase Date, after giving pro forma effect to such ~~time does not exceed $100,000,000. Such notice shall set forth (i)~~ Facility Increase, the ~~amount of the Incremental Commitments being requested (which~~ Borrower shall be in ~~minimum increments of $500,000 and a minimum amount of $5,000,000)~~pro forma compliance with all financial covenants set forth in Section 5.04; (v) on the Increase Date, ~~(ii) the date on which~~ after giving pro forma effect to such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree))Facility Increase, (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no ~~Default or Event of~~ Default shall have occurred and be ~~continuing immediately~~ continuing; (vi) any Facility Increase shall have a termination date that is no earlier than the Termination Date in respect of the applicable Facility (but may have nominal amortization prior to ~~or immediately after giving effect~~ such Termination Date so long as the Weighted Average Life to Maturity of such ~~Incremental Commitments, (ii)~~ increase is no shorter than the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as weighted average life to ~~materiality) on and as~~ maturity of the ~~date such Incremental Commitments become effective~~ then-remaining Advances under the applicable Facility); (~~or if such representation and warranty relates to another date, such other date~~vii) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be any Facility Increase will accrue interest at rates determined by the Borrower and the ~~Incremental~~ lenders providing such Facility Increase, which rates may be higher or lower than the rates applicable to the Revolving Credit or Term ~~Lenders and set forth in the applicable Incremental Assumption Agreement;~~ Advances, as applicable, (provided that if the Applicable Margin (~~i) the final maturity date of any Incremental Term Loans~~ which, for such purposes only, shall be ~~no earlier than~~ deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Facility Increase) relating to any Facility Increase exceeds the ~~Latest Maturity Date~~Applicable Margin (which, ~~(ii) the average life to maturity of the Incremental Term Loans~~ for such purposes only, shall be ~~no shorter than the remaining average life~~ deemed to ~~maturity of any then-outstanding Class of~~ include all upfront or similar fees or original issue discount payable to all Revolving Credit or Term ~~Loans~~Advances, ~~(iii~~as applicable) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect relating to the Revolving Credit or Term ~~Loans~~Advances, ~~(iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans~~ as applicable, by more than ~~50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~0.25%, ~~then~~ the Applicable Margin ~~for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v)~~ relating to the ~~extent~~ applicable Advances shall be adjusted to be equal to the ~~terms of the Incremental Term Loans are inconsistent with the terms set forth herein~~ Applicable Margin (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Facility Increase) relating to such Facility Increase minus 0.25%); (viii) except as set forth in clause (ivi) ~~through~~ or (ivvii) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and any Facility Increase shall be on terms identical to the existing applicable Facility; (ix) the existing Lenders shall initially have the right, but not the obligation, to commit to up to their Pro Rata Share (or, if consented to by the Borrower and the Administrative Agent to cover declines by other Lenders, more than their Pro Rata Share) of a Facility Increase ratably based on the applicable Term Commitments of the Term Lenders and Revolving Credit Commitments ~~(and~~ of the Revolving ~~Loans thereunder~~Credit Lenders; and (x) notwithstanding any other provision of any Loan Document (including, without limitation, Section 9.01)~~. (d) In connection with any Incremental Commitments~~, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary or appropriate, in the reasonable opinion of~~ amended by the Administrative Agent and the Borrower, if necessary, without the consent of any Lender), to ~~effect~~ provide for terms applicable to each Facility Increase consistent with the ~~provisions~~ terms hereof. (b) The Administrative Agent shall promptly notify the Term Lenders or Revolving Credit Lenders, as applicable, of a request by the Borrower for a Facility Increase in respect of the Term Facility or Revolving Credit Facility, which notice shall include (i) the proposed amount of such requested Facility Increase, (ii) the proposed Increase Date and (iii) the date by which the Lenders wishing to participate in such Facility Increase must commit to an increase in the amount of their respective Commitments (the "COMMITMENT DATE"). Each Term Lender or Revolving Credit Lender, as appropriate, that is willing to participate in the requested Facility Increase (each an "INCREASING LENDER") shall, in its sole discretion, give written notice to the Administrative Agent on or prior to the Commitment Date of the amount by which it is willing to increase its applicable Commitment. If the Increasing Lenders notify the Administrative Agent that they are willing to participate in a Facility Increase by an aggregate amount that exceeds the amount of the requested Facility Increase, the requested Facility Increase shall be allocated among the Increasing Lenders in such amounts as are agreed between the Borrower and the Administrative Agent. (c) Promptly following the applicable Commitment Date, the Administrative Agent shall notify the Borrower as to the amount, if any, by which the Increasing Lenders are willing to participate in the requested Facility Increase. If the aggregate amount by which the Increasing Lenders are willing to participate in the requested Facility Increase on any such Commitment Date is less than the requested Facility Increase, then the Borrower may extend offers to one or more Eligible Assignees to participate in any portion of the requested Facility Increase that has not been committed to by the Increasing Lenders as of the Commitment Date. (d) On the applicable Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Facility Increase in accordance with Section 2.17(c) (each such Eligible Assignee, an "ASSUMING LENDER") shall become a Lender party to this Agreement as of the applicable Increase Date and the Commitment of each Increasing Lender for such Facility Increase shall be so increased by the amount by which such Increasing Lender is willing to increase its applicable commitment (or by the amount allocated to such Lender pursuant to the last sentence of Section ~~2.25~~2.17(b)) as of such Increase Date; provided, ~~including any amendments necessary~~ however, that the Administrative Agent shall have received on or before the Increase Date the following, each dated such date: (i) certified copies of resolutions of the Board of Directors (or other analogous governing body) of the Borrower approving the applicable Facility Increase and the corresponding modifications to ~~establish~~ this Agreement and an opinion of counsel for the ~~Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as~~ Borrower (which may be ~~necessary~~ in-house counsel), addressing the due execution, authorization, delivery and enforceability of the documents evidencing such Facility Increase and the absence of any violation of constitutive documents or ~~appropriate~~ of applicable law or material contracts binding upon the Borrower, in a form reasonably satisfactory to the ~~reasonable opinion of~~ Administrative Agent; (ii) an assumption agreement from each Assuming Lender, if any, in form and substance satisfactory to the Borrower and the Administrative Agent (each an "ASSUMPTION AGREEMENT"), duly executed by such Assuming Lender, the Administrative Agent and the ~~Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25.~~Borrower; and (eiii) ~~Upon~~ confirmation from each Increasing Lender of the increase in the ~~Revolving Credit Commitments pursuant~~ amount of its Commitment in a writing satisfactory to ~~this Section ‎2.25~~the Borrower and the Administrative Agent. On the applicable Increase Date, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage upon fulfillment of the ~~aggregate outstanding participations hereunder~~ conditions set forth in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding ~~sentence~~sentence of this Section 2.17(d), the Administrative Agent shall notify the Lenders (including, without limitation, each Assuming Lender) and the Borrower, on or before 11:00 A.M. (Charlotte, North Carolina time), by telecopier, of the occurrence of the applicable Facility Increase to be effected on the related Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date.

Appears in 1 contract

Sources: Credit Agreement (Open Solutions Inc)

Incremental Facilities. (a) The Borrower may, at any time after the Closing Date and after the perfection of the Liens with respect to Controlled Account Agreements (as defined in the Second Lien Security Agreement), Intellectual Property filings and the mortgages on the Real Property Collateral in accordance with Section 2.1(e) hereof, by ~~written~~ notice (the “Incremental Notice”) to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), request the addition of a single additional tranche of term loans (the “Incremental ~~Commitments~~ Term Facility”) in an ~~amount such that, after giving effect thereto, the~~ aggregate principal amount of $15,000,0000 in favor of the Borrower. The Incremental ~~Commitments established~~ Notice shall specify a proposed closing date for funding of the Incremental Term Facility (the “Incremental Closing Date”) at or least fifteen (15) Business Days after the date the Incremental Notice is given and at least thirty (30) days prior to ~~such time does~~ the Maturity Date. Each of the existing Lenders shall have the right (but not ~~exceed $100,000,000. Such~~ the obligation), exercisable by notice ~~shall set forth~~ given to the Administrative Agent and the Borrower within ten (i10) Business Days after the Incremental Notice is given specifying the amount of the Incremental ~~Commitments being~~ Term Facility desired to be funded by such Lender, to fund up to all the amount of the Incremental Term Facility requested ~~(which~~ by the Borrower. To the extent existing Lenders elect to fund more than the amount of the Incremental Term Facility requested by the Borrower, the Lenders’ right to participate shall be allocated pro rata in ~~minimum increments~~ accordance with their respective Commitments. All of ~~$500,000 and a minimum amount of $5,000,000), (ii)~~ the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term ~~Loan Commitments and (iv)~~ Facility funded by the Lenders shall be made in the ~~case~~ form of ~~any request for~~ term loans (the “Incremental Term ~~Loan Commitments~~Loans”) with terms, ~~whether such~~ including, without limitation, maturity, interest rate, funding fees, prepayment terms, covenants, priority in right of payment and security, collateral and guarantees, identical to the existing Term Loans. ,. Commitments in respect of the Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which Facility shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental become “Commitments” under this Agreement, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans ~~or Incremental Revolving Loans thereunder~~ shall ~~comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an~~ become “~~Incremental Assumption Agreement”) relating to~~ Term Loans” under this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to To the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be deemed necessary or appropriate, in the reasonable opinion of the Administrative ~~Agent and~~ Agent, the Incremental Term Facility shall be implemented pursuant to an amendment (the “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to ~~effect~~ provide Incremental Term Loans, and the ~~provisions~~ Administrative Agent. The effectiveness of ~~this Section 2.25, including~~ any ~~amendments necessary to establish~~ Incremental Term Facility shall be conditioned solely on (i) the execution and delivery of the Incremental ~~Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be~~ Amendment (to the extent deemed necessary or appropriate in the reasonable opinion of the Administrative ~~Agent~~ Agent) and (ii) satisfaction of the other conditions set forth in Section 2.2 hereof. The Borrower ~~in connection with~~ shall use the ~~establishment~~ proceeds of ~~such new Class or tranche, in each case on terms consistent with~~ the Incremental Term Facility solely for the purposes permitted by Section 4.24 of this ~~Section 2.25~~Agreement. (eb) ~~Upon each increase in~~ If the ~~Revolving Credit Commitments pursuant~~ Lenders do not timely elect to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender provide aggregate commitments in respect of the Incremental Term Facility for the entire amount requested in accordance with paragraph (a) above, or such ~~increase, and each such~~ requested amount is not fully funded on the Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participationsClosing Date, the ~~percentage~~ Borrower, in its sole discretion, may do either of the ~~aggregate outstanding participations hereunder~~ following (but not both) (i) solicit commitments on any number of occasions on an unsecured basis from other banks, financial institutions or other institutional lenders ranking pari passu in ~~Letters~~ right of ~~Credit held~~ payment to the Term Loans in an amount up to the requested amount (minus any commitments elected to be made by ~~each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If,~~ the existing Lenders and made on the ~~date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such~~ Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender Closing Date in accordance with Section ~~2.16. The Administrative Agent and~~ 1.12(a)) or (ii) solicit commitments on any number of occasions from the Senior Lien Lenders ~~hereby agree that the minimum borrowing, pro rata borrowing and pro rata~~ ranking pari passu in right of payment ~~requirements contained elsewhere in this Agreement shall not apply~~ to the ~~transactions effected pursuant~~ Term Loans and senior as to Collateral in an amount up to the ~~immediately preceding sentence~~requested amount (minus any commitments elected to be made by the existing Lenders and made on the Incremental Closing Date in accordance with Section 1.12(a)).

Appears in 1 contract

Sources: Second Lien Term Loan Agreement (Stanadyne Holdings, Inc.)

Incremental Facilities. (a) The Borrower may, at any time prior to December 31, 2008, by ~~written~~ notice to the Administrative ~~Agent from time to time~~Agent, request ~~Incremental Commitments~~ an increase in the Revolving Credit Facility (each such facility increase being an "INCREMENTAL REVOLVING CREDIT FACILITY") or an increase in the Term B Facility or a new term loan facility (each such facility increase or new term loan facility being an "INCREMENTAL TERM FACILITY") in an aggregate principal amount not to exceed $750,000,000 for all Incremental Facilities, each of which to be effective as of a date that is at least 360 days prior to the scheduled Termination Date then in effect in respect of (x) the Revolving Credit Facility in the case of an Incremental Revolving Credit Facility and (y) the Term B Facility in the case of an Incremental Term Facility (such ~~that~~date for each such Incremental Facility, ~~after giving effect thereto~~the "INCREASE DATE"), as specified in the related notice to the Administrative Agent; provided, however, that (i) in no event shall any Incremental Facility be in a principal amount of less than $100,000,000 (or such lesser amount as shall be approved by the Administrative Agent) nor shall the aggregate amount of all Incremental ~~Commitments established at~~ Facilities exceed $750,000,000; (ii) there shall be no more than three Incremental Facilities (or such greater number as shall be approved by the Administrative Agent); (iii) on the Increase Date, the applicable conditions set forth in Section 3.02 and in clause (d) of this Section 2.17 shall be satisfied; (iv) as of the last day of the fiscal quarter of the Borrower immediately preceding the Increase Date, after giving pro forma effect to any such Incremental Facility and other customary and appropriate pro forma adjustment events, including any acquisitions or dispositions or repayment of Debt after the beginning of such fiscal quarter but prior to or simultaneous with the borrowing in respect of such ~~time does not exceed $100,000,000. Such notice shall set forth (i)~~ Incremental Facility, the ~~amount of the Incremental Commitments being requested (which~~ Borrower shall be in ~~minimum increments of $500,000 and a minimum amount of $5,000,000)~~pro forma compliance with all financial covenants set forth in Section 5.04; (v) on the Increase Date, ~~(ii) the date on which~~ after giving pro forma effect to any such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree))Facility, (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no ~~Default or Event of~~ Default shall have occurred and be ~~continuing immediately~~ continuing; (vi) each Incremental Facility shall have a maturity date that is no earlier than the scheduled Termination Date in respect of the Term B Facility (but may have nominal amortization prior to ~~or immediately after giving effect~~ such Termination Date so long as the Weighted Average Life to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms Maturity of such Incremental ~~Commitments and~~ Facility is no shorter than the ~~Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant~~ weighted average life to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ maturity of the then-remaining Advances under the Term B Facility); (vii) the interest rates and amortization schedule applicable to any Incremental ~~Term Loans~~ Facility shall be determined by the Borrower and the ~~Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement~~relevant lenders thereunder; ~~provided that~~ (iviii) ~~the final maturity date of~~ any Incremental Term ~~Loans~~ Facility shall be ~~no earlier than~~ treated like the ~~Latest Maturity Date~~Term B Advances, ~~(ii) the average life to maturity of the~~ and any Incremental ~~Term Loans~~ Revolving Credit Facility shall be ~~no shorter than~~ treated like the ~~remaining average life to maturity~~ Revolving Credit Advances, in each case in terms of ~~any then-outstanding Class~~ sharing of ~~Term Loans,~~ prepayments and other appropriate provisions; (~~iii~~ix) ~~the~~ all other terms and conditions of each Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) Facility to the extent ~~the terms of the Incremental Term Loans are inconsistent~~ not consistent with the terms ~~set forth herein (except~~ and conditions of the Term Facilities or the Revolving Credit Facility, as ~~set forth in clause (i) through (iv) above)~~the case may be, ~~such terms~~ shall be reasonably satisfactory to the Administrative ~~Agent. Any Incremental Revolving Credit Commitment (and~~ Agent and, so long as the ~~Incremental Revolving Loans thereunder)~~ Lead Arranger or any of its Affiliates shall be ~~implemented~~ a Secured Party (except as ~~an increase to the Total Revolving Credit Commitments~~ permitted by clauses (vi) and ~~shall be on terms identical to the existing Revolving Credit Commitments~~ (vii) above); and ~~the Revolving Loans thereunder~~(xi) notwithstanding any other provision of any Loan Document (including, without limitation, Section 9.01)~~. (d) In connection with any Incremental Commitments~~, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary or appropriate, in the reasonable opinion of~~ amended by the Administrative Agent and the Borrower, if necessary, to ~~effect~~ provide for terms applicable to each Incremental Facility consistent with the ~~provisions~~ terms hereof. (b) The Administrative Agent shall promptly notify Lenders selected by the Borrower in consultation with the Administrative Agent and/or one or more Eligible Assignees (each an "INVITED LENDER") of ~~this Section 2.25~~a request by the Borrower for an Incremental Facility, ~~including any amendments necessary~~ which notice shall include (i) the proposed amount of such requested Incremental Facility, (ii) the proposed Increase Date and (iii) the date by which the Invited Lenders wishing to ~~establish~~ participate in the Incremental ~~Term Loan~~ Facility must commit to an increase in the amount of their respective Commitments (the "COMMITMENT DATE"). Each Invited Lender that is willing to participate in the requested Incremental Facility (each an "INCREASING LENDER") shall, in its sole discretion, give written notice to the Administrative Agent on or prior to the Commitment Date of the amount by which it is willing to increase its applicable Commitment. If the Increasing Lenders notify the Administrative Agent that they are willing to participate in an Incremental Facility by an aggregate amount that exceeds the amount of the requested Incremental Facility, the requested Incremental Facility shall be allocated among the Increasing Lenders in such amounts as are agreed between the Borrower and the Administrative Agent. (c) Promptly following the applicable Commitment Date, the Administrative Agent shall notify the Borrower as to the amount, if any, by which the Increasing Lenders are willing to participate in the requested Incremental ~~Term Loans~~ Facility. (d) On the applicable Increase Date, each Eligible Assignee that accepts an offer to participate in a requested Incremental Facility in accordance with Section 2.17(c) (each such Eligible Assignee, an "ASSUMING LENDER") shall become a Lender party to this Agreement as ~~a new Class~~ of the applicable Increase Date and the Commitment of each Increasing Lender for such Incremental Facility shall be so increased by such amount (or ~~tranche~~ by the amount allocated to such Lender pursuant to the last sentence of ~~Term Loans~~ Section 2.17(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have received on or before the Increase Date the following, each dated such date: (i) certified copies of resolutions of the Board of Directors (or other analogous governing body) of the Borrower approving the applicable Incremental Facility and ~~such other technical amendments as~~ the corresponding modifications to this Agreement and an opinion of counsel for the Borrower (which may be ~~necessary~~ in-house counsel), addressing the due execution, authorization, delivery and enforceability of the documents evidencing such Incremental Facility and the absence of any violation of applicable law, constitutive documents or ~~appropriate~~ material contracts binding upon the Borrower, in a form reasonably satisfactory to the ~~reasonable opinion of~~ Administrative Agent; (ii) an assumption agreement from each Assuming Lender, if any, in form and substance reasonably satisfactory to the Borrower and the Administrative Agent (each an "ASSUMPTION AGREEMENT"), duly executed by such Assuming Lender, the Administrative Agent and the ~~Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25.~~Borrower; and (eiii) ~~Upon~~ confirmation from each Increasing Lender of the increase in the ~~Revolving Credit Commitments pursuant~~ amount of its Commitment in a writing satisfactory to ~~this Section ‎2.25~~the Borrower and the Administrative Agent. On the applicable Increase Date, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage upon fulfillment of the ~~aggregate outstanding participations hereunder~~ conditions set forth in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding ~~sentence~~sentence of this Section 2.17(d), the Administrative Agent shall notify the Lenders (including, without limitation, each Assuming Lender) and the Borrower, on or before 11:00 A.M. (New York City time), by telecopier, of the occurrence of the applicable Incremental Facility to be effected on the related Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date.

Appears in 1 contract

Sources: Credit Agreement (Td Ameritrade Holding Corp)

Incremental Facilities. (a) ~~The Borrower may, by written notice to the Administrative Agent~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower Representative may, by notice to the Agent (whereupon the Agent shall promptly deliver a copy of such notice to each of the Lenders), request to incur one or more increases in the Revolving Credit Commitments (“Incremental ~~Commitments in an amount such that~~Revolving Commitments” or the “Incremental Facilities”). Notwithstanding anything to the contrary herein, ~~after giving effect thereto~~without the consent of the Required Lenders, the aggregate ~~amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the~~ principal amount of the Incremental Facilities from and after the SixthSeventh Amendment Effective Date shall not exceed $200 million. All Incremental Revolving Commitments ~~being requested (which~~ shall be in ~~minimum increments~~ an integral multiple of $~~500,000~~ 250,000 and a in an aggregate principal amount that is not less than $5 million (or in such lesser minimum amount ~~of $5,000,000~~agreed by the Agent); provided, ~~(ii) the date on which~~ that such ~~Incremental Commitments are requested to become effective (which shall not~~ amount may be less than ~~10 Business Days nor more than 60 days after~~ the ~~date~~ applicable minimum amount if such amount represents all the remaining availability in respect of ~~such notice (or such longer or shorter period as~~ the ~~Administrative Agent shall agree)), (iii) whether such~~ Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional LenderFacilities. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving ~~Credit~~ Commitment ~~(and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and~~ shall be on terms identical to the ~~existing~~ Revolving Credit Commitments under the Revolving Credit Facility proposed to be increased thereby, including with respect to having the same Guarantors and being secured by the same Collateral on a pari passu basis with the applicable Facility subject to such increase except that the Maturity Date of an Incremental Revolving Commitment shall be no earlier (but may be later) than the Revolving Credit Commitments proposed to be increased. Unless the Incremental Revolving Commitment and the Revolving Credit Commitments proposed to be increased have different Maturity Dates, such Incremental Revolving Commitment shall be deemed a Revolving Credit Commitment of the applicable Revolving Credit Facility or both Revolving Credit Facilities, as the case may be, pursuant to the applicable Incremental Amendment (it being understood that an Incremental Facility establishing Incremental Revolving Commitments will not create a separate Revolving Credit Facility and such Incremental Revolving Commitments be deemed a part of the applicable Revolving Credit Facility); provided, that the Applicable Margin and the Commitment Fee Rate, in each case applicable to the Revolving Credit Commitments and Revolving Credit Loans of such Revolving Credit Facility, may be increased, without the consent of any Lender, in connection with the incurrence of any Incremental Revolving Commitment such that the Applicable Margin and the Commitment Fee Rate of such Revolving Credit Commitments are identical to those of the Incremental Revolving Commitments. Any Incremental Revolving Commitments shall be allocated between the US Revolving Credit Facility and the Canadian Revolving Credit Facility as designated by the Borrower Representative, in consultation with the Agent; provided that the Canadian Revolving Credit Commitments (~~and~~ including the Canadian ABL Sublimit), after giving effect to the establishment of Incremental Revolving ~~Loans thereunder)~~Commitments, shall not exceed $45 million in the aggregate without the consent of the Agent. (dc) ~~In connection with~~ Each notice from any Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Revolving Commitments~~, the Borrower, the Administrative Agent and each applicable~~ . Any Additional Lenders that elect to extend Incremental ~~Lender~~ Revolving Commitments shall ~~execute and deliver~~ be reasonably satisfactory to the ~~Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments~~Borrower Representative, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02and, ~~all~~ to the extent ~~reasonably requested~~ its consent would be required with respect to an assignment to such Additional Lender under Section 9.4(b), the Agent, the Swingline Lender and each Issuing Bank (in each case, any approval thereof not to be unreasonably withheld, delayed or conditioned), and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the ~~Administrative~~ Borrower Representative, any applicable Borrowers, such Additional Lender or Additional Lenders and the Agent. No Incremental Amendment shall require the consent of any Lenders or any other Person other than the Borrower Representative, any applicable Borrowers, the Agent or and the ~~other parties~~ Additional Lenders with respect to such Incremental ~~Assumption Agreement~~Amendment. The ~~Administrative~~ Lenders hereby irrevocably authorize the Agent ~~shall promptly notify each Lender~~ to enter into Incremental Amendments and, as ~~to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may~~appropriate, ~~without consent of any other Lender, effect such~~ amendments to ~~this Agreement and~~ the other Loan Documents as may be necessary in order to establish new tranches or ~~appropriate,~~ sub-tranches in ~~the reasonable opinion~~ respect of the ~~Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan~~ existing Revolving Credit Commitments and ~~Incremental Term Loans as a new Class or tranche of Term Loans and~~ such ~~other~~ technical amendments as may be necessary or appropriate in the ~~reasonable~~ opinion of the ~~Administrative~~ Agent, the Borrower Representative and the applicable Borrower to effect the provisions of this Section 2.20 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b)). In addition, if so provided in such Incremental Amendment and with the consent of the applicable Issuing Banks, participations in Letters of Credit expiring on or after the Maturity Date shall be re-allocated from Lenders holding Revolving Credit Commitments to Lenders holding Incremental Revolving Commitments, be deemed to be participation interests in respect of such Incremental Revolving Commitments and the terms of such participation interests (including the participation fees applicable thereto) shall be adjusted accordingly. No Lender shall be obligated to provide any Incremental Revolving Commitments, unless it so agrees. Revolving Credit Commitments in respect of any Incremental Revolving Commitments shall become Revolving Credit Commitments under this Agreement. The effectiveness of any Incremental Amendment (each, an “Incremental Facility Closing Date”) shall, unless otherwise agreed to by the Agent and the ~~Borrower~~ Additional Lenders party thereto, be subject to (i) the payment in ~~connection with~~ full of all fees and expenses owing to the ~~establishment~~ Agent and the Lenders in respect of such ~~new Class~~ Incremental Facility, to the extent invoiced prior to such date and (ii) the satisfaction or ~~tranche~~waiver on the date of the effectiveness of the Incremental Revolving Commitments thereunder of no Specified ABL Default shall exist after giving effect to such Incremental Revolving Commitments (or, in ~~each~~ the case of a Permitted Acquisition, permitted Investment or Limited Condition Transaction, no Specified ABL Default (as determined in accordance with Section 1.5(d)) shall exist on ~~terms consistent with this Section 2.25. (e)~~ the LCT Test Date and no Specified Event of Default shall exist on the date that such Incremental Revolving Commitments become effective). Upon each increase in the Revolving Credit Commitments of a Revolving Credit Facility pursuant to this Section ~~‎2.25~~2.20, each Lender under such Revolving Credit ~~Lender with a Revolving Credit Commitment~~ Facility immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving ~~Credit Lender~~ Commitment (each an “Incremental Lender”) in respect of such increase, and each such Incremental ~~Revolving Credit~~ Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing Revolving Credit~~ Lender’s participations hereunder in outstanding Letters of Credit under the applicable Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender in such Revolving Credit ~~Lender~~ Facility (including each such Incremental ~~Revolving Credit~~ Lender) will equal ~~its~~ the percentage of the Total Revolving Credit ~~Percentage. If, on the date~~ Commitments of ~~such increase, there are any Revolving Loans outstanding,~~ all Lenders in such Revolving ~~Loans shall upon the effectiveness of~~ Credit Facility represented by such ~~Incremental~~ Lender’s Revolving Credit Commitment ~~be prepaid from~~ thereunder. Each of the ~~proceeds of additional Revolving Loans made hereunder so~~ parties hereto hereby agrees that the ~~Revolving Loans are thereafter held by~~ Agent may, in consultation with the ~~Revolving Credit Lenders according~~ Borrower Representative, take any and all actions as may be reasonably necessary to ~~their Revolving Credit Percentages (~~ensure that, after giving effect to any Incremental Revolving Commitment, the ~~increase in~~ outstanding Revolving Credit ~~Commitments), which prepayment shall be accompanied~~ Loans are held by ~~accrued interest on~~ the ~~Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender~~ Lenders in accordance with ~~Section 2.16~~their respective Applicable Lender Percentages in respect of the applicable Revolving Credit Facility. The ~~Administrative~~ foregoing may be accomplished at the discretion of the Agent, following consultation with the Borrower Representative, (A) by requiring the outstanding Revolving Credit Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (B) by causing non-increasing Lenders to assign portions of their outstanding Revolving Credit Loans to new or increasing Lenders, (C) by a combination of the foregoing or (D) by any other means agreed to by the Agent and the Borrower Representative, and any such prepayment or assignment shall be subject to Section 2.15 but shall otherwise be without premium or penalty. The Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any of the transactions effected pursuant to the immediately preceding sentence. For the avoidance of doubt, no existing Lender shall be required to participate in an Incremental Facility without its consent.

Appears in 1 contract

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

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

Appears in 1 contract

Sources: Credit Agreement (Nu Skin Enterprises Inc)

Incremental Facilities. (a) The ~~Borrower may~~Company may on one or more occasions, by written notice to the Administrative ~~Agent from time to time~~Agent, request the establishment of Incremental Revolving Commitments ~~in an amount such that, after giving effect thereto,~~ and/or Incremental Term Commitments; provided that the aggregate principal US Dollar equivalent amount of all the Incremental Commitments established ~~at or prior to such time does~~ hereunder shall not exceed ~~$100,000,000~~US$250,000,000. ~~Such~~ Each such notice shall ~~set forth~~ specify (i1) the date on which the Company proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (2) the amount of the Incremental Commitments being requested (~~which shall be~~ it being agreed that (x) any Lender approached to provide any Incremental Commitment may elect or decline, in ~~minimum increments of $500,000 and a minimum amount of $5,000,000)~~its sole discretion, ~~(ii) the date on which~~ to provide such Incremental ~~Commitments are requested~~ Commitment and (y) any Person that the Company proposes to become ~~effective (which shall~~ an Incremental Lender, if such Person is not then a Lender, must be ~~less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ an Eligible Assignee and must be reasonably acceptable to the Administrative Agent ~~shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments~~ and ~~(iv)~~ solely in the case of ~~any request for~~ Incremental ~~Term Loan~~ Revolving Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each ~~of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional~~ Issuing Bank and the Swingline Lender). (b) ~~It shall be a condition precedent to the effectiveness~~ The terms and conditions of any Incremental Commitment of any Class and the Loans and other extensions of credit to be made thereunder (other than any upfront or similar fees) shall be identical to those of, and shall be treated as part of (and not separate from), the Commitments and the Loans of such Class and other extensions of credit made thereunder. (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Company, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to or and immediately after giving effect to such Incremental ~~Commitments~~Commitments and the making of any Loans thereunder to be made on such date, (ii) on the ~~Total Leverage Ratio~~date of effectiveness thereof, ~~determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties of the Borrowers set forth in ~~Article III~~ the Loan Documents shall be true and correct in (A) in the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each ~~other Loan Document~~ case on and as of such date of effectiveness, except in the case of any such representation or warranty that expressly relates to a prior date, in which case such representation or warranty shall be so true and correct in all material respects ~~(or in all respects, if qualified as to materiality)~~ on and as of ~~the date~~ such prior date, (iii) after giving effect to such Incremental Commitments ~~become effective~~ (and assuming the making of Loans thereunder in the full amount thereof), the Company shall be in pro forma compliance with the financial covenant 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 ~~if such representation and warranty relates to another date~~5.01(b), ~~such other date) and~~ (iv) the ~~terms of~~ Borrowers shall make any payments required to be made pursuant to Section 2.13 in connection with such Incremental Commitments and the ~~Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with~~ related transactions under this Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the ~~extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms~~ Company shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver have delivered to the Administrative Agent ~~an Incremental Assumption Agreement providing for~~ such ~~Incremental Commitments~~legal opinions, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel board resolutions, secretary’s certificates, officer’s certificates and other ~~documentation consistent with the conditions set forth in Section 4.02, all to the extent~~ documents as shall have been reasonably be requested by the Administrative Agent ~~or the other parties to~~ in connection with any such transaction. Each Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this Section ~~2.25~~2.18. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, ~~including any amendments necessary~~ (i) such Incremental Lender shall be deemed to ~~establish~~ be a “Lender” hereunder, and henceforth shall be entitled to all the ~~Incremental Term~~ rights of, and benefits accruing to, Lenders hereunder and under the other Loan ~~Commitments~~ Documents and ~~Incremental Term Loans as a new Class or tranche~~ shall be bound by all agreements, acknowledgements and other obligations of ~~Term Loans~~ Lenders hereunder and ~~such~~ under the other ~~technical amendments as may be necessary or appropriate~~ Loan Documents and (ii) in the ~~reasonable opinion~~ case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the ~~Administrative Agent and~~ event such Incremental Revolving Lender already has a Revolving Commitment, shall increase) the ~~Borrower in connection with the establishment~~ Revolving Commitment of such ~~new Class or tranche~~Incremental Revolving Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as 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) ~~Upon each increase in~~ On the date of effectiveness of any Incremental Revolving Commitments, (i) the aggregate principal amount of the Revolving ~~Credit Commitments pursuant to this Section ‎2.25, each~~ Loans outstanding (the “Existing Revolving ~~Credit Lender with a Revolving Credit Commitment~~ Borrowings”) immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving ~~Credit~~ Commitments shall be deemed to be repaid, (ii) each Incremental Revolving Lender that shall have had a Revolving Commitment ~~be prepaid from~~ prior to the ~~proceeds~~ effectiveness of ~~additional~~ such Incremental Revolving ~~Loans made hereunder so that~~ Commitments shall pay to the ~~Revolving Loans are thereafter held by~~ Administrative Agent in same day funds and in the ~~Revolving Credit Lenders according~~ applicable currency an amount equal to ~~their Revolving Credit Percentages~~ the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the ~~increase~~ 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 ~~Credit~~ Commitments)) multiplied by (2) the amount of each Resulting Revolving Borrowing, ~~which prepayment~~ (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 Revolving Borrowers shall be ~~accompanied by accrued interest on~~ deemed to have made new Revolving Borrowings (the “Resulting Revolving ~~Loans being prepaid~~ Borrowings”) in amounts and ~~any costs incurred by any~~ currencies equal to the amount and currencies of the Existing Revolving ~~Credit Lender~~ Borrowings and of the Types and for the Interest Periods specified in a Borrowing Request delivered to the Administrative Agent in accordance with Section ~~2.16~~2.03 (and the Company shall, on behalf of all applicable Revolving Borrowers, deliver such Borrowing Request), (vi) each Revolving Lender shall be deemed to hold its Applicable Percentage of each Resulting Revolving Borrowing (calculated after giving effect to the effectiveness of such Incremental Revolving Commitments) and (vii) the applicable Revolving Borrowers shall pay each Revolving Lender any and all accrued but unpaid interest on its Revolving Loans comprising the Existing Revolving Borrowings. The deemed payments of the Existing Revolving Borrowings made pursuant to clause (i) above shall be subject to compensation by the Revolving Borrowers pursuant to the provisions of Section 2.13 if the date of the effectiveness of such Incremental Revolving Commitments occurs other than on the last day of the Interest Period relating thereto. (f) The Administrative Agent ~~and~~ shall notify the Lenders ~~hereby agree that~~ promptly upon receipt by the ~~minimum borrowing~~Administrative Agent of any notice from the Company referred to in paragraph (a) of this Section and of the effectiveness of any Incremental Commitments, ~~pro rata borrowing and pro rata payment requirements contained elsewhere~~ in ~~this Agreement shall not apply to~~ each case advising the ~~transactions effected pursuant to~~ Lenders of the ~~immediately preceding sentence~~details thereof and, in the case of effectiveness of any Incremental Revolving Commitments, of the Applicable Percentages of the Revolving Lenders after giving effect thereto.

Appears in 1 contract

Sources: Credit Agreement (Octave Intelligence PLC)

Incremental Facilities. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Administrative Borrower may, by ~~written~~ notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as whereupon the Administrative Agent shall ~~agree)~~promptly deliver a copy of such notice to each of the Lenders), request to incur one or more increases in the Revolving Credit Commitments (~~iii) whether such Incremental Commitments are~~ “Incremental Revolving Credit ~~Commitments~~ Commitments” or the “Incremental ~~Term Loan Commitments and (iv) in~~ Facilities”); provided, that at the ~~case~~ time of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of each Incremental Amendment, no Specified ABL Default has occurred and is continuing or shall result therefrom (and, in connection with any Incremental ~~Commitment that (i)~~ Facility to fund a Permitted Acquisition or permitted Investment, no ~~Default or~~ Specified Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date of the definitive acquisition agreements for such Permitted Acquisition or permitted Investment entered into). Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate principal amount of the Incremental Facilities shall not exceed $50,000,000 (which, for the avoidance of doubt, will be reduced to $25,000,000 following the incurrence of the 2020 Incremental Revolving Credit Commitments on the Amendment No. 13 Effective Date). All Incremental Revolving Commitments shall be in an integral multiple of $250,000 and in an aggregate principal amount that is not less than $5,000,000 (or in such lesser minimum amount agreed by the Administrative Agent); provided, that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in respect of the Incremental Facilities. (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 ~~become effective (or if~~ will not create a separate Revolving Credit Facility and such ~~representation~~ Incremental Revolving Commitments will be deemed a part of the applicable Revolving Credit Facility); provided, that the Applicable Rate and ~~warranty relates~~ the Commitment Fee Rate, in each case applicable to ~~another date, such other date)~~ the Revolving Credit Commitments and ~~(iv) the terms~~ 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 ~~Commitments~~ Revolving Commitment such that the Applicable Rate and the ~~Incremental Term Loans or~~ Commitment Fee Rate of such Revolving Credit Commitments are identical to those of the Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c)~~Commitments. (c) ~~Incremental Commitments shall be established~~ Each notice from any Borrower pursuant to ~~an amendment (an “Incremental Assumption Agreement”) relating to~~ this ~~Agreement. The terms~~ Section 2.14 shall set forth the requested amount of the relevant Incremental ~~Term Loans shall be determined by the Borrower and the~~ Revolving Commitments. Any Additional Lenders that elect to extend Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms 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 conditioned), and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Administrative Borrower, any applicable Borrowers, such Additional Lender or Additional Lenders and the Administrative Agent. ~~Any~~ No Incremental ~~Revolving Credit Commitment (and~~ Amendment shall require the ~~Incremental Revolving Loans thereunder) shall be implemented as an increase to~~ consent of any Lenders or any other Person other than the ~~Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with~~ Administrative Borrower, any ~~Incremental Commitments, the Borrower~~applicable Borrowers, the Administrative Agent and ~~each applicable~~ the Additional Lenders with respect to such Incremental ~~Lender shall execute and deliver to~~ Amendment. The Lenders hereby irrevocably authorize the Administrative Agent an to enter into Incremental ~~Assumption Agreement providing for such Incremental Commitments~~Amendments and, ~~and such other documentation~~ as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02appropriate, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to ~~this Agreement and~~ the other Loan Documents as may be necessary in order to establish new tranches or ~~appropriate,~~ sub-tranches in ~~the reasonable opinion~~ respect of the ~~Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan~~ existing Revolving Credit Commitments and ~~Incremental Term Loans as a new Class or tranche of Term Loans and~~ such ~~other~~ technical amendments as may be necessary or appropriate in the ~~reasonable~~ opinion of the Administrative Agent, the 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 re-allocated from Lenders holding Revolving Credit Commitments to Lenders holding Incremental Revolving Commitments, be deemed to be participation interests in respect of such Incremental Revolving Commitments and the terms of such participation interests (including the participation fees applicable thereto) shall be adjusted accordingly. No Lender shall be obligated to provide any Incremental Revolving Commitments, unless it so agrees. Revolving Credit Commitments in respect of any Incremental Revolving Commitments shall become Revolving Credit Commitments under this Agreement. The effectiveness of any Incremental Amendment (each, an “Incremental Facility Closing Date”) shall, unless otherwise agreed to by the Administrative Agent and the ~~Borrower~~ Additional Lenders party thereto, be subject to (i) the payment in ~~connection with~~ full of all fees and expenses owing to the ~~establishment~~ Administrative Agent and the Lenders in respect of such ~~new Class or tranche~~Incremental Facility, to the extent invoiced prior to such date and (ii) on the date of the effectiveness of the Incremental Revolving Commitments thereunder, no Specified ABL Default shall exist after giving effect to such Incremental Revolving Commitments (or, in ~~each~~ the case of a Permitted Acquisition, permitted Investment or Limited Condition Transaction, no Specified ABL Default (as determined in accordance with Section 1.08(g)) shall exist on ~~terms consistent with this Section 2.25. (e)~~ the LCT Test Date and no Specified Event of Default shall exist on the date that such Incremental Revolving Commitments become effective). Upon each increase in the Revolving Credit Commitments of a Revolving Credit Facility pursuant to this Section ~~‎2.25~~2.14, each Lender under such Revolving Credit ~~Lender with a Revolving Credit Commitment~~ Facility immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving ~~Credit Lender~~ Commitment (each an “Incremental Lender”) in respect of such increase, and each such Incremental ~~Revolving Credit~~ Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing Revolving Credit~~ Lender’s participations hereunder in outstanding Letters of Credit under the applicable Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender in such Revolving Credit ~~Lender~~ Facility (including each such Incremental ~~Revolving Credit~~ Lender) will equal ~~its~~ the percentage of the aggregate Revolving Credit ~~Percentage. If, on the date~~ Commitments of ~~such increase, there are any Revolving Loans outstanding,~~ all Lenders in such Revolving ~~Loans shall upon the effectiveness of~~ Credit Facility represented by such ~~Incremental~~ Lender’s Revolving Credit Commitment ~~be prepaid from~~ thereunder. Each of the ~~proceeds of additional Revolving Loans made hereunder so~~ parties hereto hereby agrees that the ~~Revolving Loans are thereafter held by~~ Administrative Agent may, in consultation with the ~~Revolving Credit Lenders according~~ Administrative Borrower, take any and all actions as may be reasonably necessary to ~~their Revolving Credit Percentages (~~ensure that, after giving effect to any Incremental Revolving Commitment, the ~~increase in~~ outstanding Revolving Credit ~~Commitments), which prepayment shall be accompanied~~ Loans are held by ~~accrued interest on~~ the ~~Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender~~ Lenders in accordance with their respective Pro Rata Shares in respect of the applicable Revolving Credit Facility. The foregoing may be accomplished at the discretion of the Administrative Agent, following consultation with the Administrative Borrower, (A) by requiring the outstanding Revolving Credit Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (B) by causing non-increasing Lenders to assign portions of their outstanding Revolving Credit Loans to new or increasing Lenders, (C) by a combination of the foregoing or (D) by any other means agreed to by the Administrative Agent and the Administrative Borrower, and any such prepayment or assignment shall be subject to Section ~~2.16~~3.05 but shall otherwise be without premium or penalty. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any of the transactions effected pursuant to the immediately preceding sentence. For the avoidance of doubt, no existing Lender shall be required to participate in an Incremental Facility without its consent.

Appears in 1 contract

Sources: Abl Credit Agreement (Option Care Health, Inc.)

Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments or Incremental Revolving Credit Commitments, as applicable, in an amount (the “Incremental Facility Amount”) not to exceed the greater of (i) (x) $50,000,000 (increasing on and after the Acquisition Closing Date to $75,000,000) minus (y) the aggregate amount of all Incremental Commitments established prior to such ~~that~~time and (ii) such other amount so long as, in the case of this clause (ii), the Secured Leverage Ratio would not, after giving effect ~~thereto~~to the making of any Loans to be made on the date of effectiveness thereof (in each case assuming all Incremental Revolving Credit Commitments are drawn on such effective date) and other pro forma adjustments in accordance with Section 1.03, exceed (x) 2.50:1.00 (increasing on and after the ~~aggregate amount~~ Acquisition Closing Date to 4.00 to 1.00), in each case, as of ~~Incremental Commitments established at or prior to~~ the date of such ~~time does not exceed $100,000,000~~effectiveness. Such notice shall set forth (i1) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $~~500,000~~ 1,000,000 and a minimum amount of $~~5,000,000~~5,000,000 or such lesser amount equal to the remaining Incremental Facility Amount), (ii2) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice ~~(or such longer or shorter period as~~ unless waived by the Administrative Agent ~~shall agree)), (iii~~in its sole discretion) ~~whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments~~ and (iv3) in the case of ~~any request for~~ Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans ~~of any then outstanding Class~~ or commitments to make term loans with terms different from the Term Loans ~~of a new Class.~~ (“Other Term Loans”). (b) The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or and additional banks, financial institutions and other institutional lenders that will become Incremental Term Lenders and/or Incremental Revolving Lenders, as applicable, in connection therewith; provided that any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term ~~Loans~~ Lender or Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall~~ Lender must be ~~established pursuant to~~ an ~~amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental~~ existing Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity DateLender or existing Revolving Credit Lender, ~~(ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans~~respectively, ~~(iii) the Incremental Term Loans will rank pari passu with (~~or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably ~~satisfactory~~ acceptable to the Administrative Agent. ~~Any~~ The Borrower and each Incremental Term Lender and/or Incremental Revolving ~~Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented~~ Lender, as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitmentsapplicable, ~~the Borrower, the Administrative Agent and each applicable Incremental Lender~~ shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement ~~providing for such Incremental Commitments,~~ and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of ~~each~~ such person. The terms and provisions of the Incremental ~~Lender. Any Incremental Assumption Agreement may include conditions for delivery~~ Term Loans shall be identical to those of ~~opinions of counsel and other documentation consistent with~~ the ~~conditions~~ Term Loans except as otherwise set forth herein or in ~~Section 4.02, all to~~ the ~~extent reasonably requested by the Administrative Agent or the other parties to such~~ Incremental Assumption Agreement~~. The Administrative Agent shall promptly notify each Lender as~~ , it being understood that the Incremental Term Lenders may (i) agree to yield protection terms similar to clause (c) below that are less favorable (but not more favorable) than the terms applicable to the ~~effectiveness~~ other Classes of ~~each Incremental Assumption Agreement. Any Incremental Assumption Agreement may~~Term Loans, ~~without consent~~ (ii) agree to participate on a less than (but not greater than) pro rata basis in respect of any ~~other Lender, effect such amendments to~~ prepayments or repayments of Term Loans under this Agreement and (iii) agree to different initial Interest Periods with respect to the applicable Incremental Term Loans. The terms and provisions of the Incremental Revolving Credit Commitments shall be identical to those of the Revolving Credit Commitments. The Loans made pursuant to any Incremental Commitment shall rank pari passu in right of payment and security with the other Loans made hereunder. Without the prior written consent of a Majority in Interest of each affected Class, (a) the final maturity date of any Other Term Loans shall be no earlier than the latest Term Loan ~~Documents as may be necessary~~ Maturity Date or ~~appropriate,~~ Incremental Term Loan Maturity Date (if any) in effect at the ~~reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish~~ time the Incremental Term Loan Commitments ~~and Incremental~~ with respect to such Other Term Loans ~~as a new~~ become effective, (b) the weighted average life to maturity of the Other Term Loans shall be no shorter than the remaining weighted average life to maturity of any other Class ~~or tranche~~ of Term Loans and ~~such other technical amendments as may be necessary or appropriate in~~ (c) if the ~~reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case~~ initial Yield on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.such

Appears in 1 contract

Sources: Credit Agreement (BATS Global Markets, Inc.)

Incremental Facilities. ~~(a) The~~ Borrower may, at any time, by ~~written~~ notice to the ~~Administrative Agent from time to time~~Agent, ~~request~~ establish additional term loan facilities (the “Incremental ~~Commitments~~ Facilities”) under the Loan Documents in an aggregate principal amount ~~such that~~of up to $100,000,000, ~~after giving effect thereto~~provided that no Default exists which is continuing, the ~~aggregate amount~~ Borrower is in pro forma compliance with all financial covenants hereunder and borrowings under the Incremental Facilities would not require any other Indebtedness (other than the Loans and the Incremental Facilities) to be secured by any Collateral securing the Obligations (except to the extent such Lien is permitted under the provisions of Section 8.2 hereof). The Incremental ~~Commitments established at or prior~~ Facilities will be effected as term loan facilities which will mature and amortize in a manner reasonably acceptable to ~~such time does~~ the Agent, but will not ~~exceed $100,000,000~~in any event have a shorter average life than the Term Loan B borrowings hereunder. ~~Such notice shall set forth~~ The Incremental Facilities (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu ~~with (or junior to) the Tranche B Term Loans~~ in right of payment and security with ~~respect to security and~~ the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans other Obligations and (vii) ~~to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (~~except as set forth above, will be treated substantially the same as (and in ~~clause~~ any event no more favorably than) the Term Loan B borrowings hereunder (~~i) through (iv) above~~including with respect to mandatory and voluntary prepayments and collateral and guarantee position)~~, such terms~~ ; provided that the Incremental Facilities may provide for material additional or different financial or other covenants applicable only during periods after the Term Loan B Maturity Date. The applicable interest rate for the Incremental Facilities shall not exceed the applicable interest rate for the Term Loan B borrowings hereunder by more than 25 basis points unless the applicable interest rate for the Term Loan B borrowings hereunder are concurrently increased to be ~~reasonably satisfactory~~ no less than 25 basis points less than the pricing of the Incremental Facilities. The Incremental Facilities will be effected pursuant to an amendment to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, Loan Documents entered into among the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the~~ Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments)Facility lenders, which ~~prepayment shall be accompanied by accrued interest on~~ will not require the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceconsent of other Lenders.

Appears in 1 contract

Sources: Loan Agreement (Carrols Corp)

Incremental Facilities. (a) The Borrower ~~may~~may at any time or from time to time after the Closing Date, by ~~written~~ notice to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), request (x) one or more tranches of term loans (each such tranche, an “Incremental ~~Commitments in an amount such that, after giving effect thereto~~Term Loan” and collectively, the ~~aggregate amount of~~ “Incremental ~~Commitments established at~~ Term Loans”) or ~~prior to such time does not exceed $100,000,000. Such notice shall set forth~~ (iy) one or more increases in the amount of the ~~Incremental~~ Revolving Commitments ~~being requested~~ (~~which shall be in minimum increments of $500,000 and~~ each such increase, a ~~minimum amount of $5,000,000)~~“Revolving Commitment Increase” and, ~~(ii)~~ together with the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or “Incremental Term ~~Loan Commitments and~~ Loans, the “Incremental Loans”); provided that: (ivi) in both at the ~~case~~ time of any such request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to and upon the effectiveness of any Incremental ~~Commitment that~~ Amendment referred to below (i) an “Incremental Loan Closing Date”), no Default or Event of Default shall ~~have occurred and be continuing immediately prior to or immediately~~ exist after giving effect to ~~such~~ the extension of credit contemplated on the Incremental ~~Commitments,~~ Loan Closing Date; (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ each of ~~any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties ~~set forth~~ made by any Loan Party in ~~Article III and in each other~~ or pursuant to the Loan ~~Document~~ Documents shall be true and correct in all material respects ~~(or in all respects, if qualified as to materiality)~~ on and as of the Incremental Loan Closing Date, as if made on and as of such date (except to the extent that such ~~Incremental Commitments become effective (or if such representation~~ representations and ~~warranty relates~~ warranties specifically refer to ~~another~~ an earlier date, in which case they shall be true and correct in all material respects as of such ~~other~~ earlier date~~) and~~ ); and (iviii) the ~~terms~~ Borrower shall be in compliance with the covenants set forth in Section 7.1 determined on a pro forma basis as of ~~such Incremental Commitments and~~ the most recently ended Reference Period as if (x) the Incremental Term Loans or (y) the additional Revolving Loans, as applicable, proposed to be borrowed on such Incremental Closing Date had been outstanding and fully borrowed on the first day of such Reference Period of the Borrower for testing compliance therewith (bearing interest throughout the Reference Period at the rate applicable on the relevant Incremental Loan Closing Date). Each Incremental Term Loan shall be in an aggregate principal amount that is not less than $50,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of any Incremental Loans, when taken together with all other Incremental Loans to date, shall not exceed $250,000,000. (b) The Incremental Loans shall rank pari passu in right of payment with the Revolving Loans. The Incremental Term Loans shall not mature earlier than the Revolving Termination Date and shall otherwise be on terms, including with respect to interest rate and amortization, and pursuant to documentation, to be determined by the Borrower, the Administrative Agent and the lenders thereunder. Other than with respect to the Applicable Margin or Undrawn Fee Rate, the terms of the Revolving Commitments and Revolving Loans ~~thereunder~~ made pursuant to a Revolving Commitment Increase shall ~~comply with Section 2.25(c)~~be identical to the terms of the existing Revolving Commitments and Revolving Loans. (c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution as determined by the Borrower (any such other bank or other financial institution being called an “Additional Lender”); provided that (i) no Lender shall have any obligation to provide any Incremental Loan or commitment in respect thereof unless it agrees to do so in its sole discretion and (ii) the Administrative Agent shall have consented (not to be unreasonably withheld) to such Additional Lender. (d) Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be ~~established~~ provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the ~~Borrower~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. ~~Any~~ The Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this ~~Section 2.25, including any amendments necessary~~ Section. Each Additional Lender executing an Incremental Amendment shall become a Lender for all purposes and to ~~establish~~ the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. The Borrower will use the proceeds of the Incremental Term ~~Loan Commitments and Incremental Term Loans as a new Class or tranche of Term~~ Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with Revolving Commitment Increases for any purpose not prohibited by this ~~Section 2.25~~Agreement. (e) Upon each increase in the Revolving ~~Credit~~ Commitments pursuant to this ~~Section ‎2.25~~Section, (i) each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment~~ immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Incremental~~ Lender providing a portion of the Revolving ~~Credit Lender~~ Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing~~ Revolving ~~Credit~~ Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swingline Loans held by each Revolving ~~Credit~~ Lender (including each such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase Lender) will equal ~~its~~ the percentage of the aggregate Revolving ~~Credit Percentage. If,~~ Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Commitment and (ii) if on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall ~~upon~~ on or prior to the effectiveness of such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder ~~so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages~~ (~~after giving effect to the~~ reflecting such increase in Revolving ~~Credit~~ Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any ~~Revolving Credit~~ Lender in accordance with Section ~~2.16~~3.10. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (MSC Industrial Direct Co Inc)

Incremental Facilities. (a) ~~The~~ Borrower Representative may, by written notice to ~~the Administrative~~ Agent at any time and from time to ~~time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or~~ time prior to ~~such time does not exceed $100,000,000. Such notice shall set forth (i)~~ the ~~amount~~ fifth anniversary of the ~~Incremental~~ Restatement Date, seek new (or an increase to the existing) Commitments ~~being requested (which shall be~~ of up to $100,000,000 in ~~minimum increments of $500,000 and~~ a minimum amount of no less than $~~5,000,000~~10,000,000 (an “Incremental Term Loan Commitment”); provided, that, on a pro forma basis after giving effect to the loans to be borrowed under the Incremental Term Loan Commitment (ii“Incremental Term Loans”) and the ~~date on which such Incremental Commitments are requested to become effective (which shall not~~ proposed use of proceeds thereof, the ARR Ratio will be less than ~~10 Business Days nor more than 60 days after~~ or equal to 1.50x, calculated on a pro forma basis, and based on the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments~~ most recent fiscal quarter for which financial statements are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lenderavailable. (b) It Each such notice shall ~~be a condition precedent to the effectiveness of any Incremental Commitment that~~ (i) be delivered at a time when no Default or Event of Default ~~shall have~~ has occurred and is continuing or would result therefrom (and the effectiveness of the Incremental Term Loan Commitment shall be ~~continuing immediately prior~~ subject to no Default or ~~immediately after giving effect to~~ Event of Default existing as of the time that such Incremental ~~Commitments~~Term Loan Commitment becomes effective), and (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming~~ certify that ~~all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties of Borrowers and the other Loan Parties set forth in ~~Article III~~ the Loan Documents are true and correct in ~~each other Loan Document~~ all material respects with the same effect as if then made (except to the extent such representations and warranties expressly relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects ~~(or in all respects, if qualified as to materiality) on and~~ as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another date, such other~~ earlier date) and ~~(iv) the terms of~~ further certifying that such ~~Incremental Commitments and the~~ Incremental Term Loans ~~or Incremental Revolving Loans thereunder shall comply with Section 2.25(c)~~when borrowed will constitute “senior debt”. (c) Incremental ~~Commitments~~ Term Loans shall ~~be established pursuant~~ amortize on a schedule corresponding to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ the amortization schedule required of the existing Term Loans until the maturity date of such existing Term Loans. (d) To the extent that the initial “yield” (determined by taking into account applicable interest rate margins, floors, upfront fees and original issue discount paid, but excluding agency, arrangement, structuring and underwriting fees) on any Incremental Term Loans exceeds the initial “yield” (determined by taking into account applicable interest rate margins, including interest paid-in-kind, floors, upfront fees and original issue discount paid, but excluding agency, arrangement, structuring and underwriting fees) applicable to the Term Loans immediately before giving effect to such Incremental Term Loans, by more than 50 basis points, the applicable margin otherwise in effect for the Term Loans immediately before giving effect to such increase, shall be ~~determined~~ increased by the ~~Borrower~~ amount of such differential in excess of 50 basis points. (e) Other than with respect to pricing, margins, interest rate floors, fees and ~~the Incremental Term Lenders~~ original issue discount and ~~set forth in the applicable Incremental Assumption Agreement; provided that (i) the final~~ maturity date (which may be later but not before), the terms and provisions of any Incremental Term Loans shall be ~~no earlier than~~ substantially identical to the ~~Latest Maturity Date~~Term Loans existing immediately prior to giving effect to any such Incremental Term Loan. Any Incremental Term Loans (i) shall rank pari passu in right of payment and pari passu or junior in right of security with the Term Loans outstanding immediately prior to giving effect to such Incremental Term Loans, or shall be unsecured, (ii) shall not be secured by any asset of Holdings or any of its Subsidiaries that is not also collateral securing the ~~average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of~~ existing Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall not be ~~the same as the Borrower and Guarantors~~ guaranteed by any person other than a Loan Party with respect to the existing Term Loans, (iv) if required by Agent or Required Lenders, shall be subject to an intercreditor agreement the ~~All-~~terms of which are reasonably satisfactory to Required Lenders, so long as the Required Lenders’ approval is not unreasonably withheld, and (v) shall not be entitled to voluntary or mandatory prepayments except on a pari passu basis with then existing Term Loans. (f) It is agreed and understood that each Lender shall have the right to participate in ~~Yield on~~ its pro rata share of any requested Incremental Term Loan Commitment, provided, that no Lender shall be obligated to participate in any such Incremental Term ~~Loans exceeds~~ Loan Commitment. If any existing Lender elects not to provide the ~~initial All-in Yield~~ requested Incremental Term Loan Commitment pursuant to an exercise of ~~the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~their respective ratable participation rights, then (i) the ~~Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making~~ addition of ~~such~~ any Incremental Term ~~Loans and~~ Loan Commitment to the Credit Agreement shall require approval of Required Lenders, (vii) to the extent the ~~terms~~ Incremental Term Loan Commitment is so approved, Atalaya shall have the right of first refusal to participate on a greater than pro rata basis in any portion of such Incremental Term Loan Commitment as to which existing Lenders did not exercise ratable participation rights, and (iii) to the extent any lenders that are not existing Lenders under the Credit Agreement propose to participate in such Incremental Term Loan Commitment, any such lenders shall be reasonably acceptable to Agent and Required Lenders (such consent not to be unreasonably withheld, conditioned or delayed). (g) Proceeds of the Incremental Term Loans ~~are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall~~ will be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing used for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel working capital and other ~~documentation consistent with the conditions set forth in Section 4.02~~general corporate purposes, ~~all~~ to the extent ~~reasonably requested~~ not prohibited by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement mayLoan Documents, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish provided that the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall ~~upon the effectiveness of such Incremental Revolving Credit Commitment~~ not be ~~prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according~~ used to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and refinance any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencethen-outstanding Term Loans.

Appears in 1 contract

Sources: Amendment and Restatement Agreement (FiscalNote Holdings, Inc.)

Incremental Facilities. (a) The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by ~~written notice~~ requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”) in an aggregate principal amount for all such Incremental Term Loans incurred after the First Amendment Effective Date not to exceed the Incremental Cap; provided that: (i) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000may reasonably agree), ; (ii) except as the ~~date on which~~ Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide such ~~Incremental Commitments are requested to become effective~~ commitments shall be within the sole and absolute discretion of such Lender (~~which~~ it being agreed that the Borrower shall not be ~~less than 10 Business Days nor more than 60 days after~~ obligated to offer the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree~~opportunity to any Lender to participate in any Incremental Facility)), ; (iii) ~~whether such~~ no Incremental ~~Commitments are Incremental Revolving Credit Commitments~~ Facility or Incremental Term Loan ~~Commitments and~~ (ivnor the creation, provision or implementation thereof) in shall require the ~~case~~ approval of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing ~~Lenders (each of which shall be entitled to agree or decline to participate~~ Lender other than in its ~~sole discretion)~~ capacity, if any, as a lender providing all or ~~any Additional Lender. (b) It shall be a condition precedent to the effectiveness~~ part of any Incremental Commitment ~~that~~ or Incremental Term Loan; (iiv) ~~no Default or Event of Default shall have occurred~~ except as otherwise permitted herein (including with respect to margin, pricing, maturity and ~~be continuing immediately prior to or immediately after giving effect to such Incremental Commitments~~fees), ~~(ii)~~ the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ terms of any Incremental ~~Loans~~Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not ~~exceed 2.75:1.00,~~ require the consent of any such existing Term Lender so long as the form (~~iii~~but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); (v) the ~~representations~~ interest rate, fees, discount and ~~warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as~~ yield applicable to ~~materiality) on and as of the date such~~ any Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans Facility shall be determined by the Borrower and the lender or lenders providing such Incremental ~~Term Lenders and set forth in the applicable Incremental Assumption Agreement~~Facility; provided ~~that (i) the final maturity date of~~ that, with respect to any Incremental Term Loans ~~shall be no earlier than~~ incurred on any date after the ~~Latest Maturity Date, (ii)~~ SecondFifth Amendment Effective Date that is on or prior to the ~~average life to maturity~~ day that is six months after the Fifth Amendment Effective Date in an aggregate principal amount in excess of the greater of (x) $105,000,000 and (y) 0.75% of Consolidated Total Assets as of the last day of the most recently ended Test Period calculated on a Pro Forma Basis (the “MFN Threshold”) under any Incremental Facility that (A) consists of syndicated floating rate Dollar-denominated Term Loans ~~shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank~~ that are pari passu with ~~(or junior to)~~ the ~~Tranche B~~ Term B-23 Loans in right of payment and with respect to security and (B, (B) is originally incurred in reliance on the ~~borrower~~ Ratio Based Incremental Amount (but not any reclassification thereunder), (C) is scheduled to mature prior to the date that is one year after the Initial Term Loan Maturity Date and ~~guarantors~~ (D) is not incurred or established in connection with a Permitted Acquisition or any other Investment permitted hereby (the foregoing sub-clauses (A) andthrough (BD), the “MFN Conditions”), the Effective Yield applicable thereto may not be more than 0.75% higher than the Effective Yield applicable to any Term B-23 Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO Rate floor) with respect to the applicable Term B-23 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.75% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Term B-23 Loan due to the application or imposition of an Alternate Base Rate floor or LIBO Rate floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or LIBO Rate floor applicable to such Term B-23 Loan; (vi) subject to the Permitted Earlier Maturity Indebtedness Exception, the final maturity date with respect to any Incremental Term Loans shall be no earlier than the ~~same~~ Initial Term Loan Maturity Date; (vii) subject to the Permitted Earlier Maturity Indebtedness Exception or as expressly provided in clause (xiv) below, the Weighted Average Life to Maturity of any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of the 2019 New Term Loans or the Term B-23 Loans on the date of incurrence of such Incremental Facility; (viii) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and ~~Guarantors~~ the lenders providing such Incremental Facility; (ix) subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility; (A) any Incremental Facility (x) shall rank pari passu in right of payment with any then-existing Class of Term Loans and (y) may rank pari passu with or junior to any then-existing Class of Term Loans, as applicable, in right of security or may be unsecured (and to the extent the relevant Incremental Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Facility may be (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or (y) secured by any assets of the Borrower or any Restricted Subsidiary other than the Collateral; (xi) any Incremental Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a) on a pro rata basis, greater than pro rata basis or less than a pro rata basis with the then-existing Term Loans and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b) on a pro rata basis (to the extent such Incremental Facility is secured on a pari passu basis with the 2019 New Term Loans and/or the Term B-23 Loans), greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections; (ivxii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) no Event of Default (or, if the proceeds of any Incremental Facility are incurred in connection with a Limited Condition Transaction, no Event of Default under Section 7.01(a), (f) or (g)) shall have occurred and be continuing on such date and (B) the Specified Representations shall be true and correct in all material respects on and as of the date of the initial borrowing or establishment of such Incremental Facility; provided that (I) in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be, (II) if any Specified Representation is qualified by or subject to a “material adverse effect,” “material adverse change” or similar term or qualification, such Specified Representation shall be true and correct in all respects and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the ~~All~~date of initial funding of such Incremental Facility; provided, further, that with respect to any Limited Condition Transaction, except as set forth above, any other conditions may be satisfied on the LCT Test Date; (xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by this Agreement; and (xiv) on the date of the Borrowing of any Incremental Term 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 ~~Yield on~~ Section 2.08 or 2.13 above, such Incremental Term Loans ~~exceeds the initial All-in Yield~~ shall be added to (and constitute a part of, be of the ~~Tranche B~~ same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans ~~by more than 50 basis points (the amount~~ of such ~~excess above 50~~ Class on a pro rata basis ~~points being referred to herein as~~ (based on the ~~“Yield Differential”~~relative sizes of such Borrowings), ~~then the Applicable Margin for the Tranche B~~ so that each Term ~~Loans shall automatically be increased by the Yield Differential, effective upon the making of~~ Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding LIBO Rate Loans of the relevant Class and which end on the last day of such Interest Period. (vb) Incremental Commitments may be provided by any existing Lender, or by any other Eligible Assignee (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the ~~extent~~ relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Additional Lender; provided, further, that any Additional Lender that is an Affiliated Lender shall be subject to the ~~terms~~ provisions of ~~the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above~~Section 9.05(g), ~~such terms shall be reasonably satisfactory~~ mutatis mutandis, to the ~~Administrative Agent. Any~~ same extent as if the relevant Incremental ~~Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit~~ Commitments and ~~shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder)~~related Obligations had been acquired by such Lender by way of assignment. (dc) ~~In connection with~~ Each Lender or Additional Lender providing a portion of any Incremental ~~Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender~~ Commitment shall execute and deliver to the Administrative Agent an and the Borrower all such documentation (including the relevant Incremental ~~Assumption Agreement providing for~~ Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental ~~Commitments~~Commitment. On the effective date of such Incremental Commitment, ~~and such other documentation as~~ each Additional Lender shall become a Lender for all purposes in connection with this Agreement. (d) As conditions precedent to the effectiveness of any Incremental Facility or, subject to Section 1.10, the making of any Incremental Term Loans, (i) upon its request, the Administrative Agent shall ~~reasonably specify~~ be entitled to ~~evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of~~ receive customary written opinions of ~~counsel~~ counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other ~~documentation~~ documents as it shall reasonably require from such Additional Lender, (iii) the Administrative Agent and the applicable Lenders shall be entitled to receive all fees required to be paid to them in respect of such Incremental Facility or Incremental Term Loans, (iv) the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Term Loans were subject to Section 2.03 (provided that such Borrowing Request need not include any bring down of any representation or warranty, include any representation as to the occurrence of any default or Event of Default or other item not consistent with this Section 2.22) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof; (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Term Loans, and (B) to the extent applicable, certifying that the conditions set forth in ~~Section 4.02, all to the extent reasonably requested by~~ subclauses (A) and (B) of clause (a)(xii) above has been satisfied. (e) The Lenders hereby irrevocably authorize the Administrative Agent ~~or the other parties~~ to ~~such~~ enter into any Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as~~ Facility Amendment and/or any amendment to ~~the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of~~ any other ~~Lender, effect such amendments to this Agreement and the other~~ Loan ~~Documents~~ Document as may be necessary in order to establish new Classes or ~~appropriate,~~ sub-Classes in ~~the reasonable opinion~~ respect of ~~the Administrative Agent and the Borrower,~~ Loans or commitments pursuant to ~~effect the provisions of~~ this Section ~~2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans~~ 2.22 and such ~~other technical~~ technical, mechanical and conforming amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new ~~Class~~ Classes or ~~tranche~~sub-Classes, in each case on terms consistent with this Section ~~2.25~~2.22. (ef) ~~Upon each increase~~ This Section 2.22 shall supersede any provision in ~~the Revolving Credit Commitments pursuant to this~~ Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect 2.18 or 9.02 to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencecontrary.

Appears in 1 contract

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

Incremental Facilities. (a) ~~The~~ At any time following the Closing Date, the Parent Borrower ~~may,~~ on behalf of the 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 (the “Excess Amount”) of New Loan Commitments (as defined in the CF Agreement after giving effect to 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 as (x) may be approved by the Administrative Agent ~~from time to time, request~~ or (y) shall constitute the difference between $1,500,000,000 and all such Incremental Revolving Credit Commitments ~~in an amount~~ (when taken together with the Excess Amount on the date such ~~that, after giving effect thereto, the aggregate amount of~~ Incremental Revolving Credit Commitments ~~established at~~ become effective) obtained on or prior to such ~~time does not exceed $100,000,000~~date). ~~Such~~ Each such notice shall ~~set forth~~ specify the date (ieach, an “Increased Amount Date”) on which the ~~amount~~ Parent Borrower on behalf of the Borrowers proposes that the Incremental Revolving Credit Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than ten Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative ~~Agent shall agree)),~~ Agent. The Parent Borrower may approach any Lender or any other Person (~~iii~~other than a natural person) ~~whether such~~ to provide all or a portion of the Incremental ~~Commitments are~~ 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 ~~Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments~~decline, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion~~) or any Additional Lender. (b) It~~ , to provide a Incremental Revolving Credit Commitment. In each case, such Incremental Revolving Credit Commitments shall ~~be a condition precedent to~~ become effective, as of the ~~effectiveness of any Incremental Commitment~~ applicable Increased Amount Date; provided that (i) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Revolving Credit Commitments, as applicable; (ii) both before and after giving effect to the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ making of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, ~~(iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right~~ each of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section ~~4.02~~7 shall be satisfied; (iii) the Parent Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenant set forth in Section 10.8 of the CF Agreement as of the last day of the most recently ended fiscal quarter after giving effect to such Incremental Revolving Credit Commitments and any Investment to be consummated in connection therewith; (iv) the Incremental Revolving Credit Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers and Administrative Agent, ~~all~~ and each of which shall be recorded in the Register and shall be subject to the ~~extent~~ requirements set forth in Sections 5.4(d) and (e); (v) the Parent Borrower on behalf of the Borrowers shall make any payments required pursuant to Section 2.11 in connection with the Incremental Revolving Credit Commitments, as applicable; and (vi) the Parent Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. The Parent Borrower on behalf of the Borrowers shall give the Administrative Agent or prompt written notice of any increase in the ~~other parties~~ 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 with 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 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 ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as~~ Revolving Credit Commitments to the ~~effectiveness of~~ Revolving Credit Commitments, (b) each Incremental ~~Assumption Agreement. Any~~ Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder (a “Incremental ~~Assumption~~ 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 ~~Lender~~Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the ~~provisions~~ provision of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.14. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (HCA Holdings, Inc.)

Incremental Facilities. ~~(a)~~ The Borrower ~~may~~may at any time and from time to time prior to June 30, 2010, by ~~written~~ notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as whereupon the Administrative Agent shall ~~agree)~~promptly deliver a copy to each of the Lenders), request the addition of (~~iii~~collectively, the “Incremental Facilities”) ~~whether such~~ a new tranche of term loans (an “Incremental Term Facility”) or an increase in the Revolving Commitments ~~are~~ (“Incremental Revolving ~~Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan~~ Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion”) or ~~any Additional Lender. (b) It shall be~~ a ~~condition precedent to the effectiveness of any Incremental Commitment~~ combination thereof; provided that (i) at the time of any such request and upon the effectiveness of the Incremental Facility Amendment referred to below, no Default or Event of Default shall ~~have occurred~~ exist, (ii) the Borrower shall be in compliance with Sections 6.13, 6.14 and ~~be continuing immediately prior to or immediately~~ 6.16 determined on a pro forma basis both before and after giving effect to such Incremental ~~Commitments~~Facility (as if such Incremental Facility had been outstanding on the last day of the most recent fiscal quarter for testing compliance therewith), and (iii) all fees and expenses owing to the Administrative Agent and the Lenders in respect of such Incremental Facility shall have been paid (provided that the Administrative Agent will consult with the Borrower before agreeing to any commitment or upfront fees with the banks or other financial institutions providing such Incremental Facility). The Incremental Facilities shall be in an aggregate principal amount not exceeding (in the aggregate) $400,000,000, each Incremental Term Facility shall be in an aggregate principal amount not less than $50,000,000, and each of the Incremental Revolving Commitments shall be in an aggregate principal amount not less than $10,000,000. Each Incremental Facility (a) shall rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans, (iib) in the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all~~ case of an Incremental ~~Commitments have been fully funded and without netting the proceeds of any Incremental Loans)~~Term Facility, shall not ~~exceed 2.75:1.00~~mature earlier than the Term Loan Maturity Date (but may, subject to clause (c) below, have amortization and commitment reductions prior to such date), (~~iii~~c) in the case of an Incremental Term Facility, shall have a weighted average life that is not less than that of the Term Loans, and (d) in the case of an Incremental Term Facility, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the ~~representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects~~ Term Loans; provided that (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (ivx) the terms ~~of such~~ and conditions applicable to any Incremental ~~Commitments~~ Facility maturing after the Term Loan Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Term Loan Maturity Date, and (y) the Incremental Term ~~Loans~~ Facility may be priced differently than the Term Loans. Any such notice shall set forth the requested amount and terms of the relevant Incremental Facility. The Borrower may arrange for one or more banks or other financial institutions, each of which shall be reasonably satisfactory to the Administrative Agent and the Borrower and, with respect only to Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c~~Commitments, the Issuing Bank (any such bank or other financial institution being called an “Additional Lender”)~~. (c)~~ , to extend commitments under the Incremental ~~Commitments~~ Facility, and each existing Lender shall be ~~established~~ afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Facility. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Facility Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the ~~Borrower~~ Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. ~~Any~~ An Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents ~~as may be~~ to the extent (but only to the extent) necessary ~~or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower,~~ to effect the provisions of this ~~Section 2.25, including~~ Section. The effectiveness of any ~~amendments necessary~~ Incremental Facility Amendment shall be subject to ~~establish~~ the ~~Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche~~ satisfaction on the date thereof of ~~Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion~~ each of the ~~Administrative Agent and the Borrower~~ conditions set forth in ~~connection with the establishment of such new Class or tranche, in each case on terms consistent with this~~ Section ~~2.25.~~ 4.02 (~~e) Upon each increase in the Revolving Credit Commitments pursuant~~ it being understood that all references to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on “the date of such ~~increase, there are any Revolving Loans outstanding,~~ Borrowing” in such ~~Revolving Loans~~ Section 4.02 shall ~~upon~~ be deemed to refer to the ~~effectiveness~~ effective date of such Incremental ~~Revolving Credit Commitment be prepaid from the~~ Facility Amendment). The proceeds of ~~additional Revolving Loans made hereunder so that~~ the ~~Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments)~~Incremental Facilities will be used for working capital and other general corporate purposes, which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceincluding consideration for Permitted Acquisitions.

Appears in 1 contract

Sources: Credit Agreement (Cumulus Media Inc)

Incremental Facilities. (a) ~~The~~ Prior to the third anniversary of the Closing Date, Borrower may, ~~by written notice to the Administrative Agent~~ from time to time, request a commitment for an additional term loan to be made under this Agreement (each, an “Incremental ~~Commitments in an amount such that~~Term Loan Commitment”), ~~after giving effect thereto,~~ by providing a written notice to Agent describing the ~~aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount~~ proposed terms of the Incremental ~~Commitments being requested (which~~ Term Loan Commitment. Agent shall ~~be in minimum increments of $500,000 and~~ promptly deliver a ~~minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ copy of such notice ~~(or such longer or shorter period as~~ to each of the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new ClassLenders. The Borrower ~~may seek Incremental Commitments from~~ shall make no such offer to any Person that is not an existing ~~Lenders (each of which shall be entitled to agree or decline to participate~~ Lender that has not been approved by Agent in ~~its sole discretion~~accordance with Section 9.9(b) or ~~any Additional Lender~~that is not mutually agreeable to Agent and Borrower. (b) It The proceeds of each Incremental Term Loan shall be ~~a condition precedent~~ used solely to finance capital expenditures or Permitted Acquisitions, and in each case costs and expenses relating thereto. (c) Each Incremental Term Loan Commitment shall be subject to the following conditions: (i) both at the time of any request referred to in Section 1.12(a) and immediately after giving effect to the effectiveness of any Incremental ~~Commitment that (i)~~ Amendment referred to below, no Default or Event of Default shall have occurred and be ~~continuing immediately prior~~ continuing, (ii) no Commitment of any Lender shall be increased without the consent of such Lender and no Lender shall be required to ~~or immediately~~ provide any Incremental Term Loan Commitment and may decline to do so in its sole discretion, (iii) as of the date of incurrence of an Incremental Term Loan and for the most recent period of four Fiscal Quarters for which financial statements are available pursuant to Section 4.1 (after giving effect to such Incremental ~~Commitments~~Term Loan Facility, taking into account any Permitted Acquisition consummated simultaneously or substantially simultaneously therewith, the average daily outstanding principal balance of the Revolving Credit Facility for the immediately preceding 30 consecutive days other acquisitions, dispositions or prepayment of Indebtedness and other appropriate pro forma adjustments reasonably acceptable to Agent), the Credit Parties shall be in pro forma compliance with the financial covenants contained in Article VI hereof as of the last day of the most recently ended Fiscal Quarter for which financial statements have been delivered, and in addition, the Effective Leverage Ratio shall be at or below the lesser of (x) 4.80:1.00 and (y) 0.25:1.00 less than the maximum Effective Leverage Ratio permitted hereunder as of the last day of such most recent period of four Fiscal Quarters for which financial statements have been delivered pursuant to Section 4.1, (iv) the maturity date of the applicable Incremental Term Loan shall be no earlier than the maturity date of the Term Loan, (v) the weighted average life to maturity of such Incremental Term Loan shall be no shorter than the remaining weighted average life to maturity of the Term Loan, (vi) all fees and expenses owing in respect of such increase to Agent and the Lenders shall have been paid to the extent invoiced at least one Business Day prior to the date such Incremental Term Loan Commitment is made, (vii) if the initial “yield” on such Incremental Term Loan shall exceed by more than 0.25% per annum the initial “yield” on the Term Loan (as any such “yield” may have been previously increased pursuant to this clause (c)) (with the initial “yield” being reasonably determined by Agent in consultation with Borrower, taking into account the Applicable Margin, any LIBOR or Base Rate floors and any discount, upfront or similar fee in connection therewith (excluding customary arrangement, commitment, structuring and underwriting fees paid or payable to a lead arranger or Agent (or its Affiliates) in its capacity as such in connection with the Term Loan (or any prior Incremental Term Loan) or to one or more arrangers (or their Affiliates) in their capacities as such of such Incremental Term Loan Commitment (the amount of any such discount or fee, expressed as a percentage of the Incremental Term Loan being referred to as “OID”) and provided that the amount of any OID shall be divided by the lesser of (1) the average life to maturity of such Incremental Term Loan and (2) four) (any such excess, the “Yield Differential”) then, the Applicable Margin then in effect for the Term Loan (and on any prior Incremental Term Loan) shall automatically be increased by the Yield Differential (and, if the yield on the Incremental Term Loans are subject to a pricing grid, appropriate increases to the applicable margin on the Term Loan consistent with the foregoing shall be made), effective upon the making of the Incremental Term Loan pursuant to such Incremental Term Loan Commitment, (viii) the Incremental Term Loans shall rank no higher than pari passu in right of payment and security with the other Loans under this Agreement and (ix) the other terms and documentation in respect thereof, to the extent not consistent with terms hereof applicable to the Term Loan, shall otherwise be reasonably satisfactory to Agent. (d) (i) Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $6,000,000, and (ii) the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ aggregate amount of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or shall not exceed $20,000,000 (the “Incremental ~~Revolving Loans thereunder shall comply with Section 2.25(c~~Availability”). (ce) Commitments in respect of the Incremental Term Loans shall become Commitments under this Agreement and Incremental Term Loans shall ~~be established~~ become Term Loans under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, ~~the Administrative Agent and~~ each ~~applicable Incremental~~ Lender ~~shall execute and deliver~~ agreeing to ~~the Administrative Agent an Incremental Assumption Agreement providing for~~ provide such ~~Incremental Commitments~~Commitment, if any, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption AgreementAgent. The ~~Administrative Agent shall promptly notify each Lender as to the effectiveness of each~~ Incremental ~~Assumption Agreement. Any Incremental Assumption Agreement~~ Amendment may, subject to subsection (c) of this Section 1.12, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be ~~necessary or appropriate~~necessary, in the reasonable opinion of ~~the Administrative~~ Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to (i) the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section ~~2.25, including any amendments necessary~~ 2.2 (it being understood that all references to ~~establish~~ “the date of such Credit Event” or similar language in such Section 2.2 shall be deemed to refer to the effective date of such Incremental Amendment) (ii) the payment of fees and expenses owing in respect of the Incremental Term Loan ~~Commitments and Incremental Term~~ Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders ~~hereby agree that~~ (iii) and such other conditions as the ~~minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere~~ parties thereto shall agree. (f) This Section 1.12 shall supersede any provisions in ~~this Agreement shall not apply~~ Section 9.1 to the ~~transactions effected pursuant to the immediately preceding sentence~~contrary.

Appears in 1 contract

Sources: Credit Agreement (Ignite Restaurant Group, Inc.)

Incremental Facilities. (a) The Borrower may, at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent ~~from time~~ no later than 10 days prior to ~~time~~the anticipated Incremental Facility Closing Date (or such shorter period as may be agreed by the Administrative Agent in its discretion) (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) one or more additional tranches of term loans (the ~~amount of the~~ “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000~~Term Loans”), (ii) one or more increases in the ~~date on which~~ amount of the Revolving Credit Commitments (each such increase, an “Incremental ~~Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (~~Revolving Credit Commitment Increase”) or ~~such longer or shorter period as the Administrative Agent shall agree)),~~ (iii) ~~whether such Incremental Commitments are Incremental~~ one or more additional tranches of revolving credit commitments (the “Additional/Replacement Revolving Credit ~~Commitments or Incremental Term Loan Commitments and (iv) in~~ Commitments”); provided that both at the ~~case~~ time of any such request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent and after giving effect to the effectiveness of any Incremental ~~Commitment that (i)~~ Agreement referred to below, no Default or Event of Default shall ~~have occurred~~ exist and ~~be continuing immediately prior to~~ at the time that any such Incremental Term Loan, Incremental Revolving Credit Commitment Increase or ~~immediately~~ Additional/Replacement Revolving Credit Commitments is made or effected (and after giving effect thereto), no Default or Event of Default shall exist; provided, further, that after giving effect to the incurrence of such Incremental Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any investment to be consummated in connection therewith), the Borrower and the Restricted Subsidiaries shall be in pro forma compliance with the requirements of Sections 10.9 and 10.10 computed as of the last day of the most recent Test Period, in each case as if such Incremental Term Loans, Incremental Revolving Credit Commitment Increase or Additional/Replacement Revolving Credit Commitments, as applicable, had been outstanding on the last day of such Test Period for testing compliance therewith. (b) Each tranche of Incremental Term Loans, each Incremental Revolving Credit Commitment Increase and each tranche of Additional/Replacement Revolving Credit Commitments shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth below in this Section 2.14(b)) and the aggregate amount of the Incremental Term Loans, Incremental Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed $150,000,000 (the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit, to the extent that the Net Cash Proceeds from such Incremental Term Loans are used on the date of incurrence of such Incremental Term Loans to make the prepayments as required pursuant to Section 5.2(a)(i), (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming~~ Incremental Limit to the extent that ~~all Incremental~~ the existing Revolving Credit Commitments ~~have been fully funded and without netting~~ shall be reduced in accordance with Section 5.2(e)(ii) by an amount equal to the ~~proceeds~~ aggregate amount of ~~any Incremental Loans), shall not exceed 2.75:1.00~~Additional/Replacement Revolving Credit Commitments so provided, (iii) ~~the representations and warranties set forth~~ in ~~Article III and in each other Loan Document~~ no event shall there be ~~true and correct in all material respects (or in all respects, if qualified as to materiality) on and as~~ more than three Classes of ~~the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date)~~ revolving credit commitments outstanding at any one time and (iv) in no event shall there be more than six Classes of Term Loans outstanding at any one time. (A) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Tranche D Term Loans, (ii) shall not mature earlier than the Tranche D Term Loan Maturity Date, (iii) shall have all-in pricing (including, without limitation, margins, fees, funding discounts, and premiums) and, subject to clause (ii) above, a maturity date and amortization schedules determined by the Borrower and the lenders thereof, (iv) shall have voluntary and mandatory prepayments subject to the provisions of Section 5.1 and 5.2 and (v) shall otherwise have terms and conditions substantially similar to those of the Tranche D Term Loans unless the differences are (x) solely technical in nature or (y) made for the benefit of the Lenders of the Tranche D Term Loans. (B) The Incremental Revolving Credit Commitment Increase shall be treated the same as the Revolving Credit Commitments (including with respect to maturity date thereof) and shall be considered to be part of the Revolving Credit Facility. (C) The Additional/Replacement Revolving Credit Commitments (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, (ii) shall not mature earlier than the Revolving Credit Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Credit Maturity Date, (iii) shall have all-in pricing (including, without limitation, margins, fees, premiums and funding discounts) determined by the Borrower and the lenders of such commitments; (iv) shall contain procedures that require Additional/Replacement Revolving Credit Loans thereunder to be borrowed and repaid (other than in connection with a permanent repayment and termination of commitments) on a pro rata basis with any borrowings and repayments of Revolving Credit Loans under the Revolving Credit Commitments (which procedures may be implemented through the applicable Incremental Agreement and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Facility), (v) shall have voluntary and mandatory reductions of commitment rights that are subject to the provisions of Sections 4.2 and 5.2(e)(ii), (vi) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (vii) shall otherwise have terms and conditions substantially similar to those of the Revolving Credit Facility unless the differences are (x) solely technical in nature or (y) made for the benefit of the Lenders of the Revolving Credit Commitments. (d) Each notice from the Borrower pursuant to this Section 2.14 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments. Incremental Term Loans may be made, and Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld) by any existing Lender (it being understood that (i) each existing Lender may elect or decline, in its sole discretion, to make a portion of any Incremental Term Loan, (ii) each existing Lender with a Revolving Credit Commitment may elect or decline, in its sole discretion, to provide a portion of any Incremental Revolving Credit Commitment Increase or any Additional/Replacement Revolving Credit Commitment and (iii) the Borrower shall have simultaneously offered the existing Lenders the opportunity to provide any such Incremental ~~Commitments and~~ Term Loans, Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Commitments) or by any Additional Lender; provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, if such consent would be required under Section 13.6(b) for an assignment of Loans ~~thereunder shall comply with Section 2.25(c)~~or Commitments, as applicable, to such Lender or Additional Lender. (ce) Commitments in respect of Incremental Term Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be ~~established~~ provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental ~~Assumption~~ Agreement”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Credit Documents, executed by Holdings, the ~~Borrower~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. ~~Any~~ The Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, subject to Section 2.14(c), without the consent of any other Lender, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be ~~necessary or appropriate~~necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section ~~2.25~~7 (it being understood that all references to “the date of such Credit Event” or similar language in such Section 7 shall be deemed to refer to the effective date of such Incremental Agreement), ~~including~~ the delivery to the Administrative Agent of legal opinions of counsel reasonably requested by the Administrative Agent in connection with any ~~amendments necessary to establish~~ such transaction and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term ~~Loan~~ Loans, Incremental Revolving Credit Commitment Increases and Additional/Replacement Revolving Credit Commitments ~~and~~ for any purpose not prohibited by this Agreement; provided, however, that the proceeds of any Incremental Term Loans incurred, and any Additional/Replacement Revolving Credit Commitments provided, in either case as ~~a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate~~ described in the ~~reasonable opinion of the Administrative Agent and the Borrower~~ proviso to Section 2.14(b), shall be used in ~~connection~~ accordance with the ~~establishment of such new Class or tranche, in each case on~~ terms ~~consistent with this Section 2.25~~thereof. (ei) Upon each increase in the Revolving Credit Commitments pursuant to this ~~Section ‎2.25~~Section, each ~~Revolving Credit~~ Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit ~~Lender~~ Commitment Increase (each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving ~~Credit~~ Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing Revolving Credit~~ Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit ~~Lender~~ Commitment (including each such Incremental Revolving ~~Credit~~ Commitment Increase Lender) will equal ~~its~~ the percentage of the aggregate Revolving Credit ~~Percentage~~Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall ~~upon~~ on or prior to the effectiveness of such Incremental Revolving Credit Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder ~~so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages~~ (~~after giving effect to the~~ reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any ~~Revolving Credit~~ Lender in accordance with Section ~~2.16~~2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (ii) Upon each provision of Additional/Replacement Revolving Credit Commitments pursuant to clause (ii) of the proviso to Section 2.14(b), each Lender with a Revolving Credit Commitment immediately prior to the providing of such Additional/Replacement Revolving Loan Commitments will automatically and without further act be deemed to have assigned to each Lender providing a portion of such Additional/Replacement Revolving Credit Commitment in respect of such provision, and each such Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment and each Lender with an Additional/Replacement Revolving Credit Commitment will equal the percentage of the aggregate Revolving Credit Commitments and aggregate Additional/Replacement Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment and Additional/Replacement Revolving Credit Commitment, as applicable. If, on the date of the providing of such Additional/Replacement Revolving Credit Commitments pursuant to clause (ii) of the proviso to Section 2.14(b), there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall, on or prior to the effectiveness of such Additional/Replacement Revolving Credit Commitments, be prepaid from the proceeds of Additional/Replacement Revolving Credit Loans made hereunder (reflecting such Additional/Replacement Revolving Credit Commitments), which prepayment shall be accompanied by accrued and unpaid interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.” (dd) A new Section 2.15 of the Credit Agreement is hereby added as follows:

Appears in 1 contract

Sources: Credit Agreement (LPL Investment Holdings Inc.)

Incremental Facilities. ~~(a)~~ The Borrower ~~may~~may at any time and from time to time prior to April 30, 2006, by ~~written~~ notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as whereupon the Administrative Agent shall ~~agree~~promptly deliver a copy to each of the Lenders), request the addition of one or more new credit facilities (the "Incremental Facilities") consisting of a new tranche of term loans (an "Incremental Term Facility") or a new tranche of revolving loans (an "Incremental Revolving Facility") or a combination thereof; provided that at the time of any such request and upon the effectiveness of the Incremental Facility Amendment referred to below, no Default shall exist and the Borrower shall be in compliance with Sections 6.13, 6.14, 6.15 and 6.16, determined on a pro forma basis as if such Incremental Facility had been outstanding on the last day of the most recent fiscal quarter for testing compliance therewith. The Incremental Facilities shall be in an aggregate principal amount not exceeding (in the aggregate) $150,000,000, and each Incremental Facility shall be in an aggregate principal amount not less than $50,000,000. Each Incremental Facility (a) shall rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans, (b) shall not mature earlier than six months after the Tranche D Maturity Date (but may, subject to clause (c) below, have amortization and commitment reductions prior to such date), (~~iii~~c) ~~whether such Incremental Commitments are Incremental~~ shall have a weighted average life that is longer than that of the Revolving Credit ~~Commitments or Incremental~~ Commitments, the Tranche A Term ~~Loan Commitments~~ Loans and the Tranche D Term Loans, taken as a whole, and (ivd) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans, in the case of ~~any request for~~ an Incremental Term ~~Loan Commitments~~Facility, ~~whether such Incremental Term Loan Commitments are commitments to make additional Term Loans~~ or the Revolving Loans, in the case of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or an Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption AgreementFacility; provided that (i) the ~~final maturity date of~~ terms and conditions applicable to any Incremental ~~Term Loans shall be no earlier than~~ Facility maturing after the ~~Latest~~ Tranche D Maturity ~~Date,~~ Date may provide for material additional or different financial or other covenants applicable only during periods after the Tranche D Maturity Date and (ii) the ~~average life to maturity of the~~ Incremental ~~Term Loans shall~~ Facilities may be ~~no shorter~~ priced differently than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and ~~(v) to~~ the ~~extent~~ Revolving Loans. Any such notice shall set forth the requested amount and terms of the relevant Incremental ~~Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above)~~Facility. The Borrower may arrange for one or more banks or other financial institutions, ~~such terms~~ each of which shall be reasonably satisfactory to the Administrative ~~Agent. Any Incremental Revolving Credit Commitment (~~Agent and the Borrower (any such bank or other financial institution being called an "Additional Lender"), to extend commitments under the Incremental ~~Revolving Loans thereunder)~~ Facility, and each existing Lender shall be ~~implemented~~ afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Facility. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment (an "Incremental Facility Amendment") to this Agreement and, as ~~an increase to~~ appropriate, the ~~Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments~~other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative ~~Agent and each applicable~~ Agent. An Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit PercentageSection. ~~If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the~~ The effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.Incremental

Appears in 1 contract

Sources: Credit Agreement (Cumulus Media Inc)

Incremental Facilities. (a) The Borrower ~~may~~may at any time or from time to time after the Closing Date, by ~~written~~ notice to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), request (x) one or more tranches of term loans (each such tranche, an “Incremental ~~Commitments in an amount such that, after giving effect thereto~~Term Loan” and collectively, the ~~aggregate amount of~~ “Incremental ~~Commitments established at~~ Term Loans”) or ~~prior to such time does not exceed $100,000,000. Such notice shall set forth~~ (iy) one or more increases in the amount of the ~~Incremental~~ Revolving Commitments ~~being requested~~ (~~which shall be in minimum increments of $500,000 and~~ each such increase, a ~~minimum amount of $5,000,000)~~“Revolving Commitment Increase” and, ~~(ii)~~ together with the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or “Incremental Term ~~Loan Commitments and~~ Loans, the “Incremental Loans”); provided that: (ivi) in both at the ~~case~~ time of any such request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to and upon the effectiveness of any Incremental ~~Commitment that~~ Amendment referred to below (i) an “Incremental Loan Closing Date”), no Default or Event of Default shall ~~have occurred and be continuing immediately prior to or immediately~~ exist after giving effect to ~~such~~ the extension of credit contemplated on the Incremental ~~Commitments,~~ Loan Closing Date; (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ each of ~~any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties ~~set forth~~ made by any Loan Party in ~~Article III and in each other~~ or pursuant to the Loan ~~Document~~ Documents shall be true and correct in all material respects ~~(or in all respects, if qualified as to materiality)~~ on and as of the Incremental Loan Closing Date, as if made on and as of such date (except to the extent that such ~~Incremental Commitments become effective (or if such representation~~ representations and ~~warranty relates~~ warranties specifically refer to ~~another~~ an earlier date, in which case they shall be true and correct in all material respects as of such ~~other~~ earlier date~~) and~~ ); and (iviii) the ~~terms~~ Borrower shall be in compliance with the covenants set forth in Section 7.1 determined on a pro forma basis as of ~~such Incremental Commitments and~~ the most recently ended Reference Period as if (x) the Incremental Term Loans or (y) the additional Revolving Loans, as applicable, proposed to be borrowed on such Incremental Closing Date had been outstanding and fully borrowed on the first day of such Reference Period of the Borrower for testing compliance therewith (bearing interest throughout the Reference Period at the rate applicable on the relevant Incremental Loan Closing Date). Each Incremental Term Loan shall be in an aggregate principal amount that is not less than $50,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of any Incremental Loans, when taken together with all other Incremental Loans to date, shall not exceed $300,000,000. (b) The Incremental Loans shall rank pari passu in right of payment with the Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the Revolving Termination Date and (ii) shall otherwise be on terms, including with respect to interest rate and amortization, and pursuant to documentation, to be determined by the Borrower, the Administrative Agent and the lenders thereunder. Other than with respect to the Applicable Margin or Undrawn Fee Rate, the terms of the Revolving Commitments and Revolving Loans ~~thereunder~~ made pursuant to a Revolving Commitment Increase shall ~~comply with Section 2.25(c)~~be identical to the terms of the existing Revolving Commitments and Revolving Loans. (c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution as determined by the Borrower (any such other bank or other financial institution being called an “Additional Lender”); provided that (i) no Lender shall have any obligation to provide any Incremental Loan or commitment in respect thereof unless it agrees to do so in its sole discretion and (ii) the Administrative Agent shall have consented (not to be unreasonably withheld) to such Additional Lender. (d) Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be ~~established~~ provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the ~~Borrower~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. ~~Any~~ The Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this ~~Section 2.25, including any amendments necessary~~ Section. Each Additional Lender executing an Incremental Amendment shall become a Lender for all purposes and to ~~establish~~ the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. The Borrower will use the proceeds of the Incremental Term ~~Loan Commitments and Incremental Term Loans as a new Class or tranche of Term~~ Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with Revolving Commitment Increases for any purpose not prohibited by this ~~Section 2.25~~Agreement. (e) Upon each increase in the Revolving ~~Credit~~ Commitments pursuant to this ~~Section ‎2.25~~Section, (i) each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment~~ immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Incremental~~ Lender providing a portion of the Revolving ~~Credit Lender~~ Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing~~ Revolving ~~Credit~~ Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving ~~Credit~~ Lender (including each such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase Lender) will equal ~~its~~ the percentage of the aggregate Revolving ~~Credit Percentage. If,~~ Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Commitment and (ii) if on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall ~~upon~~ on or prior to the effectiveness of such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder ~~so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages~~ (~~after giving effect to the~~ reflecting such increase in Revolving ~~Credit~~ Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any ~~Revolving Credit~~ Lender in accordance with Section ~~2.16~~3.10. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (MSC Industrial Direct Co Inc)

Incremental Facilities. (a) ~~The~~ At any time and from time to time, subject to the terms and conditions set forth herein, the Administrative Borrower may, by ~~written~~ notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as whereupon the Administrative Agent shall ~~agree)~~promptly deliver a copy of such notice to each of the Lenders), request to incur one or more increases in the Revolving Credit Commitments (~~iii) whether such Incremental Commitments are~~ “Incremental Revolving Credit ~~Commitments~~ Commitments” or the “Incremental ~~Term Loan Commitments and (iv) in~~ Facilities”); provided, that at the ~~case~~ time of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of each Incremental Amendment, no Specified ABL Default has occurred and is continuing or shall result therefrom (and, in connection with any Incremental ~~Commitment that (i)~~ Facility to fund a Permitted Acquisition or permitted Investment, no ~~Default or~~ Specified Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date of the definitive acquisition agreements for such Permitted Acquisition or permitted Investment entered into). Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate principal amount of the Incremental Facilities shall not exceed $50,000,000. All Incremental Revolving Commitments shall be in an integral multiple of $250,000 and in an aggregate principal amount that is not less than $5,000,000 (or in such lesser minimum amount agreed by the Administrative Agent); provided, that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in respect of the Incremental Facilities. (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 ~~become effective (or if~~ will not create a separate Revolving Credit Facility and such ~~representation~~ Incremental Revolving Commitments will be deemed a part of the applicable Revolving Credit Facility); provided, that the Applicable Rate and ~~warranty relates~~ the Commitment Fee Rate, in each case applicable to ~~another date, such other date)~~ the Revolving Credit Commitments and ~~(iv) the terms~~ 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 ~~Commitments~~ Revolving Commitment such that the Applicable Rate and the ~~Incremental Term Loans or~~ Commitment Fee Rate of such Revolving Credit Commitments are identical to those of the Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c)~~Commitments. (c) ~~Incremental Commitments shall be established~~ Each notice from any Borrower pursuant to ~~an amendment (an “Incremental Assumption Agreement”) relating to~~ this ~~Agreement. The terms~~ Section 2.14 shall set forth the requested amount of the relevant Incremental ~~Term Loans shall be determined by the Borrower and the~~ Revolving Commitments. Any Additional Lenders that elect to extend Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms 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 conditioned), and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Administrative Borrower, any applicable Borrowers, such Additional Lender or Additional Lenders and the Administrative Agent. ~~Any~~ No Incremental ~~Revolving Credit Commitment (and~~ Amendment shall require the ~~Incremental Revolving Loans thereunder) shall be implemented as an increase to~~ consent of any Lenders or any other Person other than the ~~Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with~~ Administrative Borrower, any ~~Incremental Commitments, the Borrower~~applicable Borrowers, the Administrative Agent and ~~each applicable~~ the Additional Lenders with respect to such Incremental ~~Lender shall execute and deliver to~~ Amendment. The Lenders hereby irrevocably authorize the Administrative Agent an to enter into Incremental ~~Assumption Agreement providing for such Incremental Commitments~~Amendments and, ~~and such other documentation~~ as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02appropriate, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to ~~this Agreement and~~ the other Loan Documents as may be necessary in order to establish new tranches or ~~appropriate,~~ sub-tranches in ~~the reasonable opinion~~ respect of the ~~Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan~~ existing Revolving Credit Commitments and ~~Incremental Term Loans as a new Class or tranche of Term Loans and~~ such ~~other~~ technical amendments as may be necessary or appropriate in the ~~reasonable~~ opinion of the Administrative Agent, the 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 re-allocated from Lenders holding Revolving Credit Commitments to Lenders holding Incremental Revolving Commitments, be deemed to be participation interests in respect of such Incremental Revolving Commitments and the terms of such participation interests (including the participation fees applicable thereto) shall be adjusted accordingly. No Lender shall be obligated to provide any Incremental Revolving Commitments, unless it so agrees. Revolving Credit Commitments in respect of any Incremental Revolving Commitments shall become Revolving Credit Commitments under this Agreement. The effectiveness of any Incremental Amendment (each, an “Incremental Facility Closing Date”) shall, unless otherwise agreed to by the Administrative Agent and the ~~Borrower~~ Additional Lenders party thereto, be subject to (i) the payment in ~~connection with~~ full of all fees and expenses owing to the ~~establishment~~ Administrative Agent and the Lenders in respect of such ~~new Class or tranche~~Incremental Facility, to the extent invoiced prior to such date and (ii) on the date of the effectiveness of the Incremental Revolving Commitments thereunder, no Specified ABL Default shall exist after giving effect to such Incremental Revolving Commitments (or, in ~~each~~ the case of a Permitted Acquisition, permitted Investment or Limited Condition Transaction, no Specified ABL Default (as determined in accordance with Section 1.08(g)) shall exist on ~~terms consistent with this Section 2.25. (e)~~ the LCT Test Date and no Specified Event of Default shall exist on the date that such Incremental Revolving Commitments become effective). Upon each increase in the Revolving Credit Commitments of a Revolving Credit Facility pursuant to this Section ~~‎2.25~~2.14, each Lender under such Revolving Credit ~~Lender with a Revolving Credit Commitment~~ Facility immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving ~~Credit Lender~~ Commitment (each an “Incremental Lender”) in respect of such increase, and each such Incremental ~~Revolving Credit~~ Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing Revolving Credit~~ Lender’s participations hereunder in outstanding Letters of Credit under the applicable Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender in such Revolving Credit ~~Lender~~ Facility (including each such Incremental ~~Revolving Credit~~ Lender) will equal ~~its~~ the percentage of the aggregate Revolving Credit ~~Percentage. If, on the date~~ Commitments of ~~such increase, there are any Revolving Loans outstanding,~~ all Lenders in such Revolving ~~Loans shall upon the effectiveness of~~ Credit Facility represented by such ~~Incremental~~ Lender’s Revolving Credit Commitment ~~be prepaid from~~ thereunder. Each of the ~~proceeds of additional Revolving Loans made hereunder so~~ parties hereto hereby agrees that the ~~Revolving Loans are thereafter held by~~ Administrative Agent may, in consultation with the ~~Revolving Credit Lenders according~~ Administrative Borrower, take any and all actions as may be reasonably necessary to ~~their Revolving Credit Percentages (~~ensure that, after giving effect to any Incremental Revolving Commitment, the ~~increase in~~ outstanding Revolving Credit ~~Commitments), which prepayment shall be accompanied~~ Loans are held by ~~accrued interest on~~ the ~~Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender~~ Lenders in accordance with their respective Pro Rata Shares in respect of the applicable Revolving Credit Facility. The foregoing may be accomplished at the discretion of the Administrative Agent, following consultation with the Administrative Borrower, (A) by requiring the outstanding Revolving Credit Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (B) by causing non-increasing Lenders to assign portions of their outstanding Revolving Credit Loans to new or increasing Lenders, (C) by a combination of the foregoing or (D) by any other means agreed to by the Administrative Agent and the Administrative Borrower, and any such prepayment or assignment shall be subject to Section ~~2.16~~3.05 but shall otherwise be without premium or penalty. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any of the transactions effected pursuant to the immediately preceding sentence. For the avoidance of doubt, no existing Lender shall be required to participate in an Incremental Facility without its consent.

Appears in 1 contract

Sources: Abl Credit Agreement (Option Care Health, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~may at any time or from time to time after the Closing Date, by ~~written~~ notice to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), request (x) one or more tranches of term loans (each such tranche, an “Incremental ~~Commitments in an amount such that, after giving effect thereto~~Term Loan” and collectively, the ~~aggregate amount of~~ “Incremental ~~Commitments established at~~ Term Loans”) or ~~prior to such time does not exceed $100,000,000. Such notice shall set forth~~ (iy) one or more increases in the amount of the ~~Incremental~~ Revolving Commitments ~~being requested~~ (~~which shall be in minimum increments of $500,000 and~~ each such increase, a ~~minimum amount of $5,000,000)~~“Revolving Commitment Increase” and, ~~(ii)~~ together with the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or “Incremental Term ~~Loan Commitments and~~ Loans, the “Incremental Loans”); provided that: (ivi) in both at the ~~case~~ time of any such request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to and upon the effectiveness of any Incremental ~~Commitment that~~ Amendment referred to below (i) an “Incremental Loan Closing Date”), no Default or Event of Default shall ~~have occurred and be continuing immediately prior to or immediately~~ exist after giving effect to ~~such~~ the extension of credit contemplated on the Incremental ~~Commitments,~~ Loan Closing Date; (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ each of ~~any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties ~~set forth~~ made by any Loan Party in ~~Article III and in each other~~ or pursuant to the Loan ~~Document~~ Documents shall be true and correct in all material respects ~~(or in all respects, if qualified as to materiality)~~ on and as of the Incremental Loan Closing Date, as if made on and as of such date (except to the extent that such ~~Incremental Commitments become effective (or if such representation~~ representations and ~~warranty relates~~ warranties specifically refer to ~~another~~ an earlier date, in which case they shall be true and correct in all material respects as of such ~~other~~ earlier date~~) and~~ ); and (iviii) the ~~terms~~ Borrower shall be in compliance with the covenants set forth in Section 7.1 determined on a pro forma basis as of ~~such Incremental Commitments and~~ the most recently ended Reference Period as if (x) the Incremental Term Loans or (y) the additional Revolving Loans, as applicable, proposed to be borrowed on such Incremental Closing Date had been outstanding and fully borrowed on the first day of such Reference Period of the Borrower for testing compliance therewith (bearing interest throughout the Reference Period at the rate applicable on the relevant Incremental Loan Closing Date). Each Incremental Term Loan shall be in an aggregate principal amount that is not less than $50,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of any Incremental Loans, when taken together with all other Incremental Loans to date, shall not exceed $300,000,000. (b) The Incremental Loans shall rank pari passu in right of payment with the Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the Revolving Termination Date and (ii) shall otherwise be on terms, including with respect to interest rate and amortization, and pursuant to documentation, to be determined by the Borrower, the Administrative Agent and the lenders thereunder. Other than with respect to the Applicable Margin or Undrawn Fee Rate, the terms of the Revolving Commitments and Revolving Loans ~~thereunder~~ made pursuant to a Revolving Commitment Increase shall ~~comply with Section 2.25(c)~~be identical to the terms of the existing Revolving Commitments and Revolving Loans. (c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution as determined by the Borrower (any such other bank or other financial institution being called an “Additional Lender”); provided that (i) no Lender shall have any obligation to provide any Incremental Loan or commitment in respect thereof unless it agrees to do so in its sole discretion and (ii) the Administrative Agent shall have consented (not to be unreasonably withheld) to such Additional Lender. (d) Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be ~~established~~ provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the ~~Borrower~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. ~~Any~~ The Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this ~~Section 2.25, including any amendments necessary~~ Section. Each Additional Lender executing an Incremental Amendment shall become a Lender for all purposes and to ~~establish~~ the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. The Borrower will use the proceeds of the Incremental Term ~~Loan Commitments and Incremental Term Loans as a new Class or tranche of Term~~ Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with Revolving Commitment Increases for any purpose not prohibited by this ~~Section 2.25~~Agreement. (e) Upon each increase in the Revolving ~~Credit~~ Commitments pursuant to this ~~Section ‎2.25~~Section, (i) each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment~~ immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Incremental~~ Lender providing a portion of the Revolving ~~Credit Lender~~ Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing~~ Revolving ~~Credit Lender~~▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving ~~Credit~~ Lender (including each such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase Lender) will equal ~~its~~ the percentage of the aggregate Revolving ~~Credit Percentage. If,~~ Commitments of all Revolving Lenders represented by such Revolving ▇▇▇▇▇▇’s Revolving Commitment and (ii) if on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall ~~upon~~ on or prior to the effectiveness of such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder ~~so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages~~ (~~after giving effect to the~~ reflecting such increase in Revolving ~~Credit~~ Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any ~~Revolving Credit~~ Lender in accordance with Section ~~2.16~~3.10. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (MSC Industrial Direct Co Inc)

Incremental Facilities. ~~(a)~~ The ~~Borrower may~~Company may at any time, by ~~written~~ notice to the Agents (whereupon the Administrative Agent ~~from time~~ shall promptly deliver a copy to ~~time~~each of the Lenders), request the addition of new credit facilities (the "INCREMENTAL FACILITIES") consisting of a new tranche of term loans (the "INCREMENTAL TERM LOANS") or a new tranche of revolving loans (the "INCREMENTAL REVOLVING LOANS") or a combination thereof; PROVIDED that both at the time of any such request and upon the effectiveness of the Incremental ~~Commitments in an amount~~ Facility Amendment referred to below, no Default shall exist and at the time that any such ~~that~~Incremental Term Loans or Incremental Revolving Loans, as the case may be, are made (and after giving effect thereto) no Default shall exist and the Company shall be in compliance with Sections 6.14 and 6.15, determined on a pro forma basis as if such Incremental Term Loans or Incremental Revolving Loans, as the case may be, had been outstanding on the last day of the most recent fiscal quarter for testing compliance therewith. The Incremental Facilities (i) shall be in an aggregate principal amount not exceeding (in the aggregate) $100,000,000 and shall be effected as Incremental Term Loans or Incremental Revolving Loans (except that not more than $50,000,000 of the Incremental ~~Commitments established at or~~ Facilities will be Incremental Revolving Loans), (ii) shall rank PARI PASSU in right of payment and of security with the Revolving Loans and the B Term Loans, (iii) that are effected as Incremental Term Loans shall not mature earlier than the Term Loan Maturity Date (but may, subject to clause (iv) below, have amortization and commitment reductions prior to such ~~time does~~ date), (iv) that are effected as Incremental Term Loans shall not ~~exceed $100,000,000~~have a weighted average life that is shorter than that of the B Term Loans, (v) that are effected as Incremental Revolving Loans shall mature on the Revolving Loan Maturity Date, (vi) shall not accrue interest at a rate or rates in excess of the interest rates applicable to the B Term Loans, in the case of Incremental Term Loans, or the Revolving Loans, in the case of the Incremental Revolving Loans, and (vii) except as set forth above, 81 shall be treated substantially the same as (and in any event no more favorably than) the B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), in the case of Incremental Term Loans, or the Revolving Loans, in the case of the Incremental Revolving Loans; PROVIDED that (a) the terms and conditions applicable to Incremental Term Loans maturing after the Term Loan Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Term Loan Maturity Date and (b) subject to clause (vi) above, the Incremental Facilities may be priced differently than the B Term Loans and the Revolving Loans. Such notice shall set forth ~~(i)~~ the requested amount of Incremental Term Loans or Incremental Revolving Loans, as the ~~Incremental Commitments being requested (which shall be~~ case may be. In the event that existing Lenders provide commitments in ~~minimum increments of $500,000 and a minimum~~ an aggregate amount less than the total amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans, as the case may be, requested by the Company (but the Company shall not have any obligation to request any Lender to provide any amount of the Incremental Term Loans ~~thereunder~~ or Incremental Revolving Loans, as the case may be), the Company may arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an "ADDITIONAL LENDER") to extend commitments to provide Incremental Term Loans or Incremental Revolving Loans, as the case may be, in an aggregate amount equal to the unsubscribed amount. Commitments in respect of Incremental Term Loans or Incremental Revolving Loans, as the case may be, shall ~~comply with Section 2.25(c). (c) Incremental~~ become Commitments ~~shall be established~~ under this Agreement pursuant to an amendment (an ~~“Incremental Assumption Agreement”~~"INCREMENTAL FACILITY AMENDMENT") ~~relating~~ to this ~~Agreement~~Agreement and, as appropriate, the other Loan Documents, executed by the Company, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Agents. The ~~terms of the~~ Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the ~~Administrative Agent and the Borrower~~Agents, to effect the provisions of this ~~Section 2.25, including~~ Section. The effectiveness of any ~~amendments necessary~~ Incremental Facility Amendment shall be subject to ~~establish~~ the ~~Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche~~ satisfaction on the date thereof of ~~Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion~~ each of the ~~Administrative Agent and the Borrower~~ conditions set forth in ~~connection with the establishment of such new Class or tranche, in each case on terms consistent with this~~ Section ~~2.25.~~ 4.01 (~~e) Upon each increase in the Revolving Credit Commitments pursuant~~ it being understood that all references to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on "the date of such ~~increase, there are any Revolving Loans outstanding,~~ Borrowing" in such ~~Revolving Loans~~ Section 4.01 shall ~~upon~~ be deemed to refer to the ~~effectiveness~~ effective date of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit CommitmentsFacility Amendment)~~, which prepayment~~ . No Lender shall be ~~accompanied by accrued interest on~~ obligated to provide any Incremental Term Loans or Incremental Revolving Loans, as the ~~Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing~~case may be, ~~pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence~~unless it so agrees.

Appears in 1 contract

Sources: Credit Agreement (Imc Global Inc)

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

Appears in 1 contract

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

Incremental Facilities. (ai) ~~The Borrower may~~After the Restatement Effective Date and before the Final Term Loan Maturity Date (with respect to Term Loans), the Revolving Termination Date (with respect to Revolving Loans), as applicable, the Borrower, by written notice to the Administrative ~~Agent from time~~ Agent, may request the establishment of (x) one or more (A) additional tranches of term loans or (B) increases (an “Incremental Term Loan Increase”) to ~~time~~an existing tranche of term loans (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”); provided that (x) each such request ~~Incremental Commitments in an~~ shall be for not less than $25,000,000 (or such lesser amount ~~such that,~~ up to the Maximum Facilities Amount) and (y) after giving effect ~~thereto~~to each such request and the proposed use of proceeds thereof, the aggregate amount (the “Maximum Facilities Amount”) of the Facilities (which term, for the avoidance of doubt, shall be amended pursuant to the Incremental Commitment Agreement to include any additional tranches of term loans so requested, if applicable) shall not exceed the greater of (A) $3,000,000,000 and (B) an amount equal to 350% of Consolidated EBITDA, determined to give pro forma effect to any related transactions consummated concurrently therewith, for the mostly recently ended period of four consecutive fiscal quarters for which financial statements have been delivered pursuant to Section 6.1 (ii) after the Restatement Effective Date and before the Final Term Loan Maturity Date, the Borrower, by written notice to Administrative Agent, may also request the establishment of a synthetic letter of credit facility (the “Incremental Synthetic L/C Facility”; the commitments thereto, the “Incremental Synthetic L/C Commitments”; and, together with the Incremental Loan Commitments, the “Incremental Commitments”); provided that (x) each such request shall be for not less than $25,000,000 (or such lesser amount up to the Maximum Incremental Synthetic Facility Amount) and (y) after giving effect to each such request, the aggregate principal amount (the “Maximum Incremental Synthetic Facility Amount”) of the Incremental Synthetic L/C Commitments ~~established at or prior to such time does~~ shall not exceed $~~100,000,000~~500,000,000. ~~Such~~ Each such notice shall ~~set forth~~ specify the date (ieach, an “Increased Amount Date”) on which the ~~amount of~~ Borrower proposes that the Incremental Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new ClassAgent. The Borrower may ~~seek~~ approach any Lender or any Person to provide or arrange all or a portion of the Incremental Commitments; provided that (i) no Lender will be required to provide such Incremental Commitment, (ii) any entity providing all or a portion of the Incremental Commitments ~~from existing Lenders (each~~ other than a Lender, an affiliate of ~~which~~ a Lender or an Approved Fund, shall be ~~entitled~~ reasonably acceptable to ~~agree~~ the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or ~~decline~~ delayed) and (iii) any entity providing all or a portion of the Incremental Revolving Commitments other than a Lender, an affiliate of a Lender or an Approved Fund, shall be reasonably acceptable to ~~participate in its sole discretion)~~ each Issuing Lender (with such acceptance by the Issuing Lenders to not be unreasonably withheld or ~~any Additional Lender~~delayed). (b) It In each case, such Incremental Commitments shall ~~be a condition precedent to~~ become effective as of the ~~effectiveness of any Incremental Commitment that~~ applicable Increased Amount Date, provided that (i) no Default or Event of Default shall have occurred and be continuing ~~immediately prior to~~ on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Commitments, , (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document Borrower shall be ~~true and correct~~ in ~~all material respects (or in all respects, if qualified as to materiality) on and~~ compliance with Section 7.1 as of the ~~date such Incremental Commitments become effective (or if such representation and warranty relates~~ most recently ended fiscal quarter for which financial statements have been delivered pursuant to ~~another date, such other date) and (iv) the terms of~~ Section 6.1 after giving effect to such Incremental Commitments and the use of proceeds thereof (provided, in the case of the Incremental Synthetic Facility, not giving effect to any deemed usage thereof) and assuming any related Specified Transaction has occurred, (iii) the weighted average life to maturity of any Incremental Term ~~Loans~~ Loan (other than any Incremental Tranche A Term Loan) shall be greater than or equal to the then-remaining weighted average life to maturity of the Term Loans, (iv) the maturity date of the Incremental Synthetic L/C Facility shall be no earlier than the Final Term Loan Maturity Date, 55 (v) the interest rate margin in respect of any Incremental Revolving Loans ~~thereunder shall comply with Section 2.25(c).~~ that is in effect on the Increased Amount Date (cafter giving effect to original issue discount (“OID”) ~~Incremental Commitments~~ or upfront fees, (which shall be ~~established pursuant~~ deemed to ~~an amendment (an “Incremental Assumption Agreement”~~constitute like amounts of OID, with OID being equated to interest rates in a manner determined by the Administrative Agent based on a four-year life to maturity) ~~relating~~ paid to ~~this Agreement. The terms~~ all of the Incremental Revolving Lenders in connection therewith but excluding any customary arrangement, commitment or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith) shall not exceed the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed the sum of such Applicable Margin and such fees, such Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments, shall be increased so that the interest rate margin in respect of such Incremental Revolving Loans that is in effect on the Increased Amount Date (giving effect to any OID issued or such upfront fees paid to all of the Incremental Lenders in connection therewith as set forth above) is no greater than the sum of (x) the Applicable Margin for the Revolving Loans made pursuant to the Revolving Commitments that is in effect on the Increased Amount Date, and (y) the OID or the upfront fees paid to all of the Lenders in respect of such Revolving Commitments, (vi) with respect to the Term Loans ~~shall be determined by the Borrower and the~~ (other than any Incremental Tranche A Term ~~Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i)~~ Loans), if the final maturity date of any Incremental Term Loans ~~shall be no earlier~~ (except for any Incremental Tranche A Term Loans) is not at least one year later than the ~~Latest~~ Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Term Loans (~~ii) the average life~~ after giving effect to ~~maturity~~ OID or upfront fees paid to all of the Incremental Term ~~Loans shall be no shorter than the remaining average life~~ Loan Lenders in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to ~~maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with~~ one or more arrangers (or ~~junior to~~their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the ~~Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans~~ manner set forth above)) shall ~~be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans~~ not exceed by more than 50 basis points the sum of (~~the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then~~ 1) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date (other than any Incremental Tranche B A Term Loans), and (2) the upfront fees paid to all of the Lenders in respect of such Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, the Applicable Margin for such Term Loans shall ~~automatically~~ be increased by so that the ~~Yield Differential, effective upon the making~~ interest rate margin in respect of such Incremental Term Loans ~~and~~ (v) after giving effect to ~~the extent the terms~~ any OID issued or such upfront fees paid to all of the Incremental Term ~~Loans are inconsistent with the terms~~ Loan Lenders in connection therewith as set forth ~~herein~~ above (~~except~~ but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (1) the Applicable Margin for such Term Loans that is in effect on the Increased Amount Date, (2) the OID or upfront fees paid to all of the Lenders in respect of such Term Loans and (3) 5▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇▇) if the final maturity date of any Incremental Synthetic L/C Facility is not at least one year later than the Final Term Loan Maturity Date, the interest rate margin in respect of such Incremental Synthetic L/C Facility (after giving effect to OID or upfront fees paid to all of the Lenders participating in such Incremental Synthetic L/C Facility in connection therewith but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally) (with fees and OID being equated to interest rate in the manner set forth above)) shall not exceed by more than 50 basis points the sum of (x) the Applicable Margin for the Term Loans, and (y) the upfront fees paid to all of the Lenders in respect of their Term Loans, which shall be equated to interest rate based on a four-year life to maturity, or if it does so exceed by more than 50 basis points the sum of such Applicable Margin and such fees, such Applicable Margin for the Term Loans shall be increased so that the interest rate margin in respect of such Incremental Synthetic L/C Facility (giving effect to any OID issued or such upfront fees paid to all of the Incremental Synthetic L/C Lenders in connection therewith as set forth above (but excluding any customary arrangement, commitment, underwriting or other similar fees payable to one or more arrangers (or their affiliates) in connection therewith, any amendment or consent fees or any other fees not paid to all relevant Lenders generally)) is no greater than the sum of (x) the Applicable Margin for the Term Loans that is in effect on the Increased Amount Date, (y) the upfront fees paid to all of the Lenders in respect of their Term Loans and (z) 50 basis points; provided, further, that the interest margin in respect of such Incremental Synthetic L/C Facility may be increased by an additional 200 basis points in the form of an additional OID or upfront fees if reasonably necessary after increasing the Applicable Margin for the Term Loans as set forth in this clause (vii), and (viii) the Incremental Revolving Commitments, the Incremental Term Loan Commitments or the Incremental Synthetic L/C Commitments shall be effected, in each case, pursuant to one or more incremental commitment agreements in a form reasonably acceptable to the Administrative Agent (each, a “Incremental Commitment Agreement”) executed and delivered by the Borrower, the applicable Incremental Revolving Lender, the Incremental Term Loan Lender or the Incremental Synthetic L/C Lender and the Administrative Agent pursuant to which the applicable Incremental Revolving Lender, Incremental Term Loan Lender or the Incremental Synthetic L/C Lender agrees to be bound to the terms of this Agreement as a Lender. Except for Incremental Term Loans made in connection with an Incremental Term Loan Increase, any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement, and the provisions of clauses (vi) and (vii) above shall be determined separately for each tranche of Term Loans. Notwithstanding the foregoing, in the case of any Incremental Loan Commitments implemented to finance a Permitted Acquisition, satisfaction of the conditions set forth in clauses (i) ~~through~~ and (ivii) ~~above)~~may, at the option of the Borrower, be determined solely as of the date on which the definitive agreement governing such Permitted Acquisition is executed, calculated to give pro forma effect to such acquisition as if it had occurred on such date of determination. (c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (x) each of the Lenders with Revolving Commitments being increased shall assign to each Person with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) and each of the Incremental Revolving Lenders shall purchase from each of the Lenders with Revolving Commitments, at the principal amount thereof, such ~~terms~~ interests in the Revolving Loans outstanding on such Increased Amount Date as shall be ~~reasonably satisfactory~~ necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the ~~Administrative Agent. Any~~ addition of such Incremental Revolving ~~Credit~~ Commitments to the Revolving Commitments, (y) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (z) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. 57 The terms and provisions of the Incremental Revolving Loans ~~thereunder)~~ and Incremental Revolving Commitments shall be ~~implemented as an increase to the Total Revolving Credit Commitments and shall be on terms~~ substantially identical to the ~~existing~~ Revolving ~~Credit Commitments (~~Loans and the Revolving ~~Loans thereunder)~~Commitments of the Revolving Facility. (d) ~~In connection with~~ On any Increased Amount Date on which any Incremental ~~Commitments~~Term Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions and unless otherwise provided in the applicable Incremental Commitment Agreement, (i) each Person with an Incremental Term Loan Commitment (each, an “Incremental Term Loan Lender”) shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment, and (ii) each Incremental Term Loan Lender shall become a Lender hereunder with respect to the Incremental Term Loan Commitment and the Incremental Term Loans made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Synthetic L/C Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each Person with an Incremental Synthetic L/C Commitment (each, an “Incremental Synthetic L/C Lender”; together with Incremental Revolving Lenders and Incremental Term Loan Lenders, the ~~Borrower~~“Incremental Lenders”) shall make a deposit in a credit linked deposit account in respect of such Incremental Synthetic L/C Facility (an “Incremental Synthetic Deposit”) in an amount equal to its Incremental Synthetic L/C Commitment, ~~the Administrative Agent~~ and (ii) each ~~applicable~~ Incremental Synthetic L/C Lender shall ~~execute and deliver~~ become a Lender hereunder with respect to the ~~Administrative Agent an~~ Incremental ~~Assumption Agreement providing for such Incremental Commitments,~~ Synthetic L/C Commitment and ~~such other documentation as the Administrative Agent shall reasonably specify to evidence~~ the Incremental Synthetic Deposits made pursuant thereto. (f) Each Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section ~~2.25~~2.23. For the avoidance of doubt, ~~including any amendments necessary to establish~~ the ~~Incremental~~ Tranche B Term ~~Loan Commitments and~~ Loans constitute Incremental Term Loans ~~as a new Class or tranche~~ for all purposes of ~~Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent~~ this Agreement and the ~~Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25~~other Loan Documents. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

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

Incremental Facilities. ~~(a) The Borrower may,~~ Company may by written notice to Syndication Agents elect to request prior to the ~~Administrative Agent from time to time~~second anniversary of the Closing Date the establishment of one or more incremental term loan commitments (the “Incremental Loan Commitment”), ~~request Incremental Commitments in~~ by an amount not in excess of $250,000,000 in the aggregate. Each such ~~that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ specify (iA) the ~~amount of~~ date (each, an “Increased Amount Date”) on which Company proposes that the Incremental Loan Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such notice is delivered to Syndication Agents and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, an “Incremental ~~Commitments are requested~~ Loan Lender”) to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ whom Company proposes any portion of such ~~notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such~~ Incremental ~~Commitments are Incremental Revolving Credit Commitments or Incremental Term~~ Loan Commitments be allocated and ~~(iv) in~~ the ~~case~~ amounts of such allocations; provided that any ~~request for~~ Lender approached to provide all or a portion of the Incremental ~~Term~~ Loan ~~Commitments~~Commitment may elect or decline, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion~~) or any Additional Lender. (b) It~~ , to provide an Incremental Loan Commitment. Such Incremental Loan Commitments shall ~~be a condition precedent to the effectiveness~~ become effective as of ~~any Incremental Commitment~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Loan Commitments, ; (ii2) both before and after giving effect to the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ making of any Incremental Loans), ~~shall not exceed 2.75:1.00, (iii)~~ each of the ~~representations and warranties~~ conditions set forth in ~~Article III and in each other Loan Document~~ Section 3.2 shall be ~~true~~ satisfied; (3) Company and ~~correct~~ its Subsidiaries shall be in ~~all material respects (or~~ pro forma compliance with each of the covenants set forth in ~~all respects, if qualified as to materiality) on and~~ Section 6.8 as of the ~~date~~ last day of the most recently ended Fiscal Quarter after giving effect to such Incremental Loan Commitments; (4) the Incremental Loan Commitments ~~become effective~~ shall be effected pursuant to one or more Joinder Agreements executed and delivered by Company, Syndication Agents and Administrative Agent, each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 2.19(c); (~~or if such representation and warranty relates~~ 5) Company shall make any payments required pursuant to ~~another date, such other date~~Section 2.17(c) in connection with the Incremental Loan Commitments; and (iv6) Company shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction. Any Incremental Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Loans for all purposes of this Agreement. On any Increased Amount Date on which any Incremental Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Loan Lender of any Series shall make a Loan to Company (an “Incremental Loan”) in an amount equal to its Incremental Loan Commitment of such Series, and (ii) each Incremental Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Loan Commitment of such Series and the Incremental Loans of such Series made pursuant thereto. Administrative Agent shall notify Lenders promptly upon receipt of Company’s notice of each Increased Amount Date and in respect thereof the Series of Incremental Loan Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this AgreementLoan Lenders of such Series. The terms and provisions of the Incremental ~~Term~~ Loans and Incremental Loan Commitments of any Series shall ~~be determined by the Borrower and the Incremental Term Lenders and~~ be, except as otherwise set forth herein or in the ~~applicable Incremental Assumption~~ Joinder Agreement~~; provided that~~ , identical to the Term Loan. In any event (i) the ~~final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the~~ weighted average life to maturity of ~~the~~ all Incremental ~~Term~~ Loans of any Series shall be no shorter than the ~~remaining~~ weighted average life to maturity of ~~any then-outstanding Class~~ each of the Revolving Loans and the Term Loans, (ii) the applicable Incremental Loan Maturity Date of each Series shall be no shorter than the final maturity of the Revolving Loans and the Term Loans, (iii) the rate of interest applicable to the Incremental ~~Term~~ Loans ~~will rank pari passu with (or junior to)~~ of each Series shall be determined by Company and the ~~Tranche B Term~~ applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided however that the interest rate applicable to the Incremental Loans ~~in right of payment and~~ shall not be greater than the highest interest rate that may, under any circumstances, be payable with respect to ~~security and the borrower and guarantors of the Incremental~~ Term Loans ~~shall be~~ unless the ~~same as the Borrower and Guarantors~~ interest rate with respect to the Term ~~Loans, (iv) if~~ Loans is increased so as to equal the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) interest rate applicable to the ~~extent the terms of the~~ Incremental ~~Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent~~Loans. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Syndication Agents and Administrative ~~Agent and the Borrower~~Agent, to effect the ~~provisions~~ provision of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.23. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (Entravision Communications Corp)

Incremental Facilities. (a) [Reserved] (b) The Borrower may, by written notice to the ~~Administrative~~ Agent from time to time, request Incremental Commitments in an amount for all such ~~that, after giving effect thereto, the aggregate amount of~~ Incremental Commitments ~~established~~ not to exceed the Incremental Facility Amount at such time from one or ~~prior~~ more Incremental Lenders, which may include any existing Lender or Eligible Assignee (each of which shall be entitled to agree or decline to participate in its sole discretion); provided that (i) any Incremental Revolving Credit Commitments (and the Incremental Revolving Credit Advances thereunder) shall be implemented as an increase to the total Revolving Credit Commitments and shall have identical terms as the Revolving Credit Commitments (and the Revolving Credit Advances thereunder) and (ii) each Incremental Lender shall be subject to the approval of the Agent (and, in the case of an Incremental Revolving Credit Lender, each Issuing Bank) (which approvals shall not be unreasonably withheld or delayed) if such approvals would be required by Section 9.07 for an assignment of Advances or Commitments to such ~~time does not exceed $100,000,000~~Incremental Lender. Such notice shall set forth (ix) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $~~500,000~~ 5,000,000 and a minimum amount of $~~5,000,000~~25,000,000 or such lesser amount equal to the remaining Incremental Facility Amount, as applicable), (iiy) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such ~~notice (or such longer or shorter period as~~ notice, unless the ~~Administrative~~ Agent shall otherwise agree~~)), (iii~~) ~~whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments~~ and (ivz) in the case of ~~any request for~~ Incremental Term ~~Loan~~ Commitments, whether such Incremental Term ~~Loan~~ Commitments are (i) commitments to make additional Term A Advances, additional Tranche B Loans, additional Tranche B2 Loans ~~of any then outstanding Class~~ or or additional Tranche B3 Loans or (ii) commitments to make new A Type Term Loans ~~of a new Class. The Borrower may seek~~ (as defined below) with terms different from the Term A Advances (such loans, “Specified Incremental ~~Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion~~Tranche A Advances” and such commitments “Specified Incremental Tranche A Commitments”) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental new B Type Term Loans ~~or Incremental Revolving Loans thereunder shall comply~~ (as defined below) with ~~Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The~~ terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) different from the Tranche B ~~Term~~ Loans, the Tranche B2 Loans ~~in right of payment and with respect to security~~ and the ~~borrower and guarantors of the~~ Tranche B3 Loans then outstanding (such loans, “Specified Incremental ~~Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the~~ Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment Advances” (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection together with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.Specified 79 [[8006820]]

Appears in 1 contract

Sources: Eighth Amendment to Existing Credit Agreement (Science Applications International Corp)

Incremental Facilities. ~~(a)~~ The Borrower ~~may,~~ Representative may by written notice to the Administrative Agent ~~from~~ at any time after the Closing Date elect to ~~time~~request (A) prior to the Revolving Commitment Termination Date, ~~request~~ an increase to the existing Revolving Commitments (any such increase, the “Incremental ~~Commitments in~~ Revolving Commitments”) and/or (B) the establishment of one or more new term loan commitments (the “Incremental Term Loan Commitments”), by an amount ~~such that~~not in excess of the greater of (x) $750,000,000 in the aggregate and (y) $1,250,000,000 in the aggregate if, after giving pro forma effect ~~thereto~~to the incurrence of such Incremental Revolving Commitments and/or Incremental Term Loan Commitments and the consummation of any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Term Loan Commitments or Incremental Revolving Commitments), the Senior Secured Net Leverage Ratio would not exceed 3.00:1.00, plus, in each case of clauses (x) and (y), the aggregate NY\5627635.16 amount of Revolving Commitments of any Lender that was a Defaulting Lender that have been terminated and, in each case, not less than $25,000,000 individually (or such lesser amount which shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $750,000,000 or $1,250,000,000, as applicable, and all such Incremental Revolving Commitments ~~established at or~~ and Incremental Term Loan Commitments obtained prior to such ~~time does not exceed~~ date), and integral multiples of $~~100,000,000~~10,000,000 in excess of that amount. ~~Such~~ Each such notice shall ~~set forth~~ specify (iA) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the Borrower Representative proposes that the Incremental Revolving Commitments ~~being requested (~~or Incremental Term Loan Commitments, as applicable, shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent ~~shall agree))~~and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, ~~(iii~~an “Incremental Revolving Loan Lender” or “Incremental Term Loan Lender”, as applicable) ~~whether~~ to whom the Borrower Representative proposes any portion of such Incremental Revolving Commitments ~~are~~ or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations; provided that the Administrative Agent may elect or decline to arrange such Incremental Revolving ~~Credit~~ Commitments or Incremental Term Loan Commitments in its sole discretion and ~~(iv) in~~ any Lender approached to provide all or a portion of the ~~case of any request for~~ Incremental ~~Term Loan Commitments, whether such~~ Revolving Commitments or Incremental Term Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class~~ may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion) , to provide an Incremental Revolving Commitment or ~~any Additional Lender. (b) It~~ an Incremental Term Loan Commitment. Such Incremental Revolving Commitments or Incremental Term Loan Commitments shall ~~be a condition precedent to the effectiveness~~ become effective as of ~~any Incremental Commitment~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable; (2) both before and after giving effect to the incurrence of such Incremental Revolving Commitments and/or Incremental Term Loan Commitments, each of the conditions set forth in Section 3.02 shall be satisfied; (3) the U.S. Borrower shall be in pro forma compliance with each of the covenants set forth in Section 6.07 as of the last day of the most recently ended Fiscal Quarter after giving effect to such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, and the consummation of any Investment or acquisition, repayment of any Indebtedness or payment or making of any Restricted Payment with the Net Cash Proceeds thereof (assuming a borrowing of the maximum amount of Loans available thereunder, but otherwise excluding the Net Cash Proceeds of any such Incremental Term Loan Commitments or Incremental Revolving Commitments); (4) the Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements executed and delivered by the applicable Borrower, the Incremental Revolving Loan Lender or Incremental Term Loan Lender, as applicable, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Revolving Loan Lender and Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the applicable Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Revolving Commitments; (6) the applicable Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) as reasonably requested by the Administrative Agent in connection with any such transaction and (7) the applicable Borrower shall have paid all fees and expenses owing to the Agents and the Lenders in respect of such Incremental Revolving Commitments or Incremental Term Loan Commitments. Any Incremental Term Loans made on an Increased Amount Date shall NY\5627635.16 be designated a separate series (a “Series”) of Incremental Term Loans for all purposes of this Agreement. On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Commitments of the same Class shall assign to each of the Incremental Revolving Loan Lenders, and each of the Incremental Revolving Loan Lenders shall purchase from each of such Lenders, at the principal amount thereof (together with accrued interest), such interests in the applicable Revolving Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Commitments of the same Class and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments of the applicable Class, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment of the applicable Class and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan of the applicable Class and (c) each Incremental Revolving Loan Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of any Series shall make a Loan to the U.S. Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) each Incremental Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower Representative’s notice of each Increased Amount Date and in respect thereof (x) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders or the Series of Incremental Term Loan Commitments and the Incremental Term Loan Lenders of such Series, as applicable and (y) in the case of each notice to any applicable Lender with Revolving Commitments, the respective interests in such Lender’s Revolving Loans, in each case subject to the assignments contemplated by this Section 2.24. The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall be, except as otherwise set forth herein or in the Joinder Agreement, identical to the Tranche B Term Loans. The terms and provisions of the Incremental Revolving Loans shall be identical to the Revolving Loans of the same Class. In the case of any Incremental Term Loans, (i) the Weighted Average Life to Maturity of all Incremental Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Tranche B Terms Loans, (ii) the ~~Total Leverage Ratio~~applicable Incremental Term Loan Maturity Date of each Series shall be no earlier than the final maturity of the Tranche B Term Loans, ~~determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded~~ and ~~without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00,~~ (iii) the ~~representations~~ yield and ~~warranties set forth in Article III and in each~~ all other ~~Loan Document shall be true and correct in all material respects (or in all respects, if qualified as~~ terms applicable to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of ~~the Incremental Term Loans~~ each Series shall be determined by the Borrower Representative and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided, NY\5627635.16 however, that the yield applicable to the Incremental Term ~~Lenders~~ Loans of each Series (after giving effect to all rate floors and ~~set forth in~~ all fees or original issue discount payable with respect to such Incremental Term Loans), as reasonably determined by the Administrative Agent, shall not be greater than the applicable ~~Incremental Assumption Agreement; provided that~~ interest rate (including the Applicable Margin and rate floor) payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Tranche B Term Loans, plus 0.50% per annum unless (i) the ~~final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life~~ interest rate with respect to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans ~~in right of payment and with respect~~ is increased so as to ~~security and~~ cause the ~~borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield~~ then applicable interest rate under this Agreement on ~~such Incremental Term Loans exceeds the initial All-in Yield of~~ the Tranche B Term Loans by to be not more than ~~50 basis points~~ 0.50% less than the yield then applicable to the Incremental Term Loans of each Series (after giving effect to all rate floors and all fees or original issue discount payable with respect to such Incremental Term Loans) and (ii) the interest rate with respect to Tranche A Term Loans is increased by an amount equal to the amount of ~~such excess above 50 basis points being referred to herein as~~ any increase in the ~~“Yield Differential”), then the Applicable Margin~~ interest rate for ~~the~~ Tranche B Term Loans ~~shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v)~~ pursuant to ~~the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in~~ clause (i~~) through (iv) above~~)~~, such terms shall be reasonably satisfactory to the Administrative Agent~~. Any Incremental Revolving ~~Credit Commitment (and the Incremental Revolving~~ Loans ~~thereunder) shall~~ will be ~~implemented~~ documented solely as an increase to the ~~Total~~ Revolving ~~Credit~~ Commitments ~~and shall be on terms identical~~ of the same Class without any change in terms, other than any change that is more favorable to the ~~existing~~ Revolving ~~Credit Commitments (~~Lenders and ~~the~~ applies equally to all Revolving Loans ~~thereunder). (d) In connection with any Incremental Commitments,~~ and Revolving Commitments of the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lendersame Class. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any Lender other than the applicable Incremental Revolving Loan Lender or Incremental Term Loan Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative Agent ~~and the Borrower,~~ to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.24. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (PVH Corp. /De/)

Incremental Facilities. (a) The Borrower ~~may~~may at any time or from time to time after the Closing Date, by ~~written~~ notice to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) ~~the amount of the~~ an increase in any Revolving Credit Commitments (each, an “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000),~~ Increase”) or (ii) the ~~date on which~~ addition of one or more new tranches of term loans (each, an “Incremental Term Facility”; the commitments in respect thereof “Incremental Term Commitments”; the loans made pursuant to such commitments, “Incremental ~~Commitments are requested to become effective~~ Term Loans”) or revolving credit commitments (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are “Incremental Revolving Credit ~~Commitments or~~ Commitments”; the loans made pursuant to such commitments, “Incremental Revolving Credit Loans”; and the Incremental Revolving Credit Commitments, together with the Incremental Term ~~Loan Commitments~~ Facilities and ~~(iv~~the Incremental Increases, the “Incremental Facilities”) in favor of the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders Borrower; provided that (~~each of which shall be entitled to agree or decline to participate in its sole discretion~~i) ~~or any Additional Lender. (b) It shall be a condition precedent to~~ upon the effectiveness of any Incremental ~~Commitment that~~ Amendment referred to below, (ix) no ~~Default or Event of~~ Default shall have occurred and be continuing ~~immediately prior to or immediately~~ and (y) the financial covenants in Section 7.15 would be satisfied on a pro forma basis for the most recent Test Period after giving effect to the proposed borrowing of such Incremental ~~Commitments~~Facilities (assuming such Incremental Facilities were fully drawn) and any related transactions, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties ~~set forth~~ in Article ~~III and in each other Loan Document~~ 5 shall be true and correct in all material ~~respects (or in all~~ respects, ~~if qualified as to materiality~~(iii) ~~on and as~~ the maturity date of any Incremental Term Facility shall be no earlier than the ~~date such Incremental Commitments become effective (or if such representation and warranty relates to another date~~Term Maturity Date, ~~such other date) and~~ (iv) any Incremental Term Facility shall not have a Weighted Average Life to Maturity shorter than the then-remaining Weighted Average Life to Maturity of the Original Term Loans, (v) any Incremental Increase shall be on the same terms as the applicable increased Class of Revolving Credit Commitments, (vi) any Incremental Term Facility may be on the same terms as any class or tranche of Term Loans then outstanding (in which case the loans made pursuant to such Incremental ~~Commitments and~~ Term Facility shall be deemed to be included in such class or tranche of Term Loans for all purposes of this Agreement), (vii) after giving effect to any Incremental Revolving Credit Facility, there shall be no more than three separate Maturity Dates in effect for all Revolving Credit Commitments, (viii) the Incremental ~~Term Loans~~ Facilities shall rank pari passu in right of payment and of security with the other Facilities; provided that the Incremental Amendment with respect to any Incremental Facility may provide that such Incremental Facility may share in the proceeds realized upon the sale or ~~Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established~~ other disposition of Collateral pursuant to an ~~amendment~~ enforcement of remedies only after the Obligations in respect of one or more other Facilities shall have been paid in full, (~~an “Incremental Assumption Agreement”~~ix) ~~relating~~ the interest rates and amortization schedule applicable to ~~this Agreement. The terms of~~ the Incremental Term Loans shall be determined by the Borrower and the lenders thereof, (x) any fees payable in connection with such Incremental ~~Term Lenders~~ Facilities shall be determined by the Borrower and ~~set forth in~~ the applicable Lender or Additional Lender providing such Incremental ~~Assumption Agreement; provided~~ Facilities and (xi) to the extent that ~~(i)~~ the ~~final maturity date~~ terms and conditions of any Incremental Term ~~Loans shall be no earlier than~~ Facility are not consistent with this Agreement (except as provided for in the ~~Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans,~~ preceding clauses (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans), (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.,

Appears in 1 contract

Sources: Credit Agreement (Primedia Inc)

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

Appears in 1 contract

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

Incremental Facilities. Subject to the terms and conditions set forth herein, the Borrower shall have the right, from time to time and upon at least ten (a10) ~~The Borrower may, by~~ Business Days’ prior written notice to the Administrative Agent ~~from time~~ (an “Incremental Request”), to ~~time~~request to incur additional term loans under a then existing tranche and/or add one or more additional tranches of term loans (“Other Term Loans” and, ~~request~~ together with any additional term loans under a then existing tranche incurred pursuant to this Section 2.16, the “Incremental Term Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) and/or increase the Aggregate Revolving Commitments (the “Incremental Revolving Commitments”; and revolving loans made thereunder the “Incremental Revolving Loans”); the Incremental Revolving Loans, together with the Incremental Term Loans are referred to herein as the “Incremental Facility Loans”), subject, however, in ~~an amount~~ any such ~~that~~case, ~~after giving effect thereto,~~ to satisfaction of the following conditions precedent: a. the aggregate amount of all Incremental Revolving Commitments ~~established at or prior~~ and Incremental Term Loans effected pursuant to ~~such time does~~ this Section 2.16 shall not exceed $~~100,000,000. Such notice shall set forth~~ 200,000,000; b. subject, in the case of an Incremental Term Loan being used to finance a Limited Condition Acquisition, to Section 1.08, on the date on which any Incremental Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility Loans (i) assuming that the full amount of the Incremental ~~Commitments being requested (which~~ Facility Loans shall ~~be in minimum increments of $500,000~~ have been funded on such date) and ~~a minimum amount of $5,000,000)~~any related transactions, (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no ~~Default or Event of~~ Default shall have occurred and be ~~continuing immediately prior~~ continuing; c. subject, in the case of an Incremental Term Loan being used to ~~or immediately~~ finance a Limited Condition Acquisition, to Section 1.08, after giving effect to the incurrence of such Incremental ~~Commitments~~Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and any related transactions, ~~(ii) the Total Leverage Ratio, determined~~ on a Pro Forma ~~Basis (assuming that all~~ Basis, the Loan Parties shall be in compliance with the financial covenants set forth in Article VII; d. subject, in the case of an Incremental ~~Commitments have been fully funded and without netting the proceeds of any Incremental Loans)~~Term Loan being used to finance a Limited Condition Acquisition, ~~shall not exceed 2.75:1.00~~to Section 1.08, ~~(iii)~~ the representations and warranties set forth in Article ~~III and in each other Loan Document~~ V shall be true and correct in all material respects (or if such representation and warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects~~, if qualified as to materiality~~) on and as of the date on which such Incremental ~~Commitments~~ Facility Amendment is to become ~~effective~~ effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or if such representation and warranty ~~relates~~ is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) as of such earlier date; e. any Incremental Revolving Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to ~~another~~ the existing Revolving Commitments, including with respect to maturity date, ~~such other date)~~ interest rate and ~~(iv)~~ prepayment provisions, and shall not constitute a credit facility separate and apart from the ~~terms of such Incremental Commitments and the~~ existing revolving credit facility set forth in Section 2.01(b); f. any Incremental Term Loans ~~or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments~~ that constitute additional term loans under a then existing tranche of term loans shall be ~~established pursuant~~ made on the same terms and provisions (other than upfront fees) as apply to such outstanding term loans, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loans; g. in the case of any Other Term Loans, such Other Term Loans shall: (A) rank pari passu in right of payment priority with the existing Term Loans, (B) (I) rank pari passu or junior in right of security with the existing Term Loans (subject, in the case of Other Term Loans secured on a junior basis, to an ~~amendment~~ intercreditor agreement satisfactory to the Administrative Agent) and not be secured by any assets other than the Collateral or (~~an “Incremental Assumption Agreement”~~II) ~~relating~~ be unsecured, (C) not be guaranteed by any Person that is not a Loan Party, (D) have a maturity date that is no earlier than the Maturity Date for the Term Loans, (E) have a Weighted Average Life to ~~this Agreement. The terms~~ Maturity that is no shorter than the Weighted Average Life to Maturity of the ~~Incremental~~ Term Loans (it being understood that, subject to the foregoing, the amortization schedule applicable to such Other Term Loans shall be determined by the Borrower and the ~~Incremental~~ Lenders of such Other Term Loans) and (F) have pricing as determined by the Borrower and the Lenders ~~and set forth in the applicable Incremental Assumption Agreement~~of such Other Term Loans; provided ~~that (i)~~ that, the ~~final maturity date of any Incremental~~ terms and documentation relating to such Other Term Loans shall be ~~no earlier than the Latest Maturity Date,~~ on either (i) market terms or (ii) terms not materially more onerous, taken as a whole, to the ~~average life to maturity of the Incremental Term Loans shall be no shorter~~ Borrower than the ~~remaining average life~~ existing Term Loan (except to ~~maturity of any then-outstanding Class of Term Loans, (iii)~~ the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors extent permitted above with respect to the ~~Term Loans~~maturity date, ~~(iv) if~~ amortization and interest rate and other than terms which are applicable only after the ~~All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield~~ Maturity Date of the ~~Tranche B~~ Term ~~Loans by more than 50 basis points (~~Loan); h. the Administrative Agent shall have received additional commitments in a corresponding amount of such ~~excess above 50 basis points~~ requested Incremental Facility Loans from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being ~~referred~~ understood and agreed that no existing Lender shall be required to ~~herein as~~ provide an additional commitment); and i. the ~~“Yield Differential”)~~Administrative Agent shall have received customary closing certificates, ~~then~~ legal opinions and resolutions of the ~~Applicable Margin~~ Loan Parties that it may reasonably request relating to the corporate or other necessary authority for such Incremental Facility Loans and the ~~Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making~~ validity of such Incremental ~~Term Loans~~ Facility Loans, and ~~(v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth~~ any other matters relevant thereto, all in ~~clause (i) through (iv) above), such terms shall be~~ form and substance reasonably satisfactory to the Administrative Agent. ~~Any~~ Each Incremental Term Facility and any Incremental Revolving ~~Credit Commitment~~ Commitments shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.16 (and ~~the Incremental Revolving Loans thereunder) shall be implemented as an increase~~ subject to the ~~Total Revolving Credit Commitments and shall be on terms identical to~~ limitations set forth in the ~~existing Revolving Credit Commitments (and~~ immediately preceding paragraph), executed by the ~~Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower~~Loan Parties, the Administrative Agent and each ~~applicable~~ Lender providing a portion of the Incremental ~~Lender~~ Term Facility and/or Incremental Revolving Commitments, as applicable; which such amendment, when so executed, shall ~~execute and deliver~~ amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the ~~Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments~~Loan Documents, and such other ~~documentation~~ new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.16. Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall ~~reasonably specify~~ be required to ~~evidence~~ be executed or approved by any Lender, other than the Lenders providing such Incremental ~~Commitment~~ Term Loans and/or Incremental Revolving Commitments, as applicable, and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each ~~Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery~~ of ~~opinions of counsel and other documentation consistent with~~ the conditions set forth ~~in Section 4.02, all to the extent reasonably~~ above and as such other conditions (if any) as requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish Lenders under the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower Facility established in connection ~~with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25~~therewith. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (Fox Factory Holding Corp)

Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments or Incremental Revolving Credit Commitments, as applicable, in an amount (the “Incremental Facility Amount”) not to exceed (i) $150,000,000 minus the aggregate amount of all Incremental Commitments established prior to such ~~that~~time in reliance on this clause (i) plus (ii) an additional amount so long as, in the case of this clause (ii), the Secured Leverage Ratio would not, after giving effect ~~thereto,~~ to the ~~aggregate amount~~ making of any Loans to be made on the date of effectiveness thereof (in each case assuming all Incremental Commitments ~~established~~ are drawn on such effective date) and other pro forma adjustments in accordance with Section 1.03, exceed 2.50:1.00 as of the date of such effectiveness; provided that, if the Secured Leverage Ratio requirement set forth in clause (ii) above is satisfied on such date, any such Indebtedness may, at ~~or prior~~ the sole discretion of Holdings, be incurred under clause (ii) above regardless of whether there is capacity to incur such ~~time does not exceed $100,000,000~~Indebtedness under clause (i) above. Such notice shall set forth (i1) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $~~500,000~~ 1,000,000 and a minimum amount of $~~5,000,000~~5,000,000 or such lesser amount equal to the remaining Incremental Facility Amount), (ii2) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 ~~Business Days~~ days nor more than 60 days after the date of such ~~notice (or such longer or shorter period as~~ notice, in each case unless waived by the Administrative Agent ~~shall agree)), (iii~~in its sole discretion) ~~whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments~~ and (iv3) in the case of ~~any request for~~ Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments ~~are~~ will be commitments to make additional Term Loans ~~of any then outstanding Class~~ with terms substantially identical to the Term Loans made on the Closing Date or commitments to make term loans with terms different from the Term Loans ~~of a new Class.~~ made on the Closing Date (“Other Term Loans”). (b) The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or and additional banks, financial institutions and other institutional lenders that will become Incremental Term Lenders and/or Incremental Revolving Lenders, as applicable, in connection therewith; provided that any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term ~~Loans~~ Lender or Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall~~ Lender must be ~~established pursuant to~~ an ~~amendment (~~existing Term Lender or an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Dateexisting Revolving Credit Lender, ~~(ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans~~respectively, ~~(iii) the Incremental Term Loans will rank pari passu with (~~or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably ~~satisfactory~~ acceptable to the Administrative Agent. ~~Any~~ The Borrower, Holdings and each Incremental Term Lender and/or Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.as

Appears in 1 contract

Sources: Credit Agreement (Diamond Resorts International, Inc.)

Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Loan Commitments from one or more Incremental Term Lenders or Incremental Revolving Lenders, as applicable, all of which must be Eligible Assignees (which Eligible Assignee may not be the Borrower or a Subsidiary thereof but may, solely in the case of Incremental Term Loan Commitments, be an ~~amount~~ Affiliated Lender or an Affiliate that becomes an Affiliated Lender as a result of such ~~that~~transaction (but only if Section 9.04(k) is complied with)), so long as at the time such Incremental Loan Commitments become effective and, in the case of Incremental Term Loans, at the time any Incremental Loans in respect thereof are incurred (after giving effect ~~thereto~~on a pro forma basis to the incurrence of such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), the aggregate principal amount of such Incremental Loan Commitments ~~established at or prior to such time~~ and (without duplication) Incremental Loans does not exceed ~~$100,000,000~~the Maximum Incremental Facilities Amount. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $~~500,000~~ 2,500,000 and a minimum amount of $~~5,000,000~~10,000,000, such lesser amount equal to the remaining Maximum Incremental Facilities Amount or such other amounts as the Administrative Agent may reasonably agree to), (ii) the date (an “Increased Amount Date”) on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such ~~longer or shorter period~~ other number of days as the Administrative Agent ~~shall agree~~may reasonably agree to)), ) and (iii) ~~whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments,~~ whether such Incremental Term Loan Commitments are commitments to make ~~additional~~ term loans with terms different from any other then existing Term Loans ~~of any then outstanding Class or commitments to make~~ (“Other Term ~~Loans of a new Class.~~ Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any other bank, financial institution or other institutional lender or investor (each of which must be an Eligible Assignee) that agrees to provide any portion of Incremental Loan Commitments (each, an “Additional Incremental Lender. ”) (~~b) It shall be a condition precedent to the effectiveness of any Incremental Commitment~~ provided that (i) ~~no Default or Event of Default~~ the Administrative Agent, the Swing Line Lender and each Issuing Bank shall have ~~occurred and~~ consented (such consent not to be ~~continuing immediately prior to~~ unreasonably withheld or ~~immediately after giving effect~~ delayed) to such Lender’s or Additional Incremental Lender’s making such Incremental Loan Commitments to the extent such consent, if any, would be required under Section 9.04(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Incremental Lender, (ii) ~~the Total Leverage Ratio~~an Affiliated Lender may provide Incremental Term Loan Commitments or Incremental Term Loans only if Section 9.04(k) is complied with, ~~determined on a Pro Forma Basis (assuming that all~~ but may not provide Incremental Revolving Loan Commitments ~~have been fully funded~~ or Incremental Revolving Loans and ~~without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00,~~ (iii) the ~~representations~~ Borrower and ~~warranties set forth in Article III~~ its Subsidiaries may not make Incremental Loan Commitments or Incremental Loans). The Borrower and in each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, as applicable, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan ~~Document~~ Commitment of each Incremental Lender. The terms and provisions of the Incremental Revolving Loans shall be ~~true and correct in all material respects (or in all respects, if qualified as~~ identical to ~~materiality) on and as~~ those of the ~~date such~~ Revolving Loans. All Incremental Revolving Loan Commitments ~~become effective (or if such representation and warranty relates~~ shall be documented solely as an increase to ~~another date, such other date) and (iv)~~ the ~~terms of such Incremental~~ Revolving Credit Commitments and all Incremental Revolving Loans shall be identical to all Revolving Loans, other than in respect of any arrangement, commitment or upfront fees payable to any Incremental Revolving Lenders or any arranger appointed in connection therewith. Notwithstanding the foregoing, (i) any Incremental Term Loans ~~or Incremental Revolving Loans thereunder shall comply with Section 2.25(c).~~ (cx) ~~Incremental Commitments~~ shall be ~~established pursuant to an amendment~~ secured on a pari passu basis with the Revolving Loans, (~~an “Incremental Assumption Agreement”~~y) ~~relating to this Agreement. The terms of the Incremental Term Loans~~ shall not be ~~determined~~ guaranteed by ~~the Borrower~~ any person that is not a Guarantor and ~~the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that~~ (iz) shall not be secured by any assets which do not constitute Collateral, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Revolving Maturity date, (iii) such Incremental Term Loans do not mature or have scheduled amortization or payments of principal (other than, in any case, amortization at a rate of no more than 1% per annum) prior to the date that is the Latest Maturity ~~Date~~Date at the time such Incremental Term Loans are incurred, (iiiv) ~~the average life to maturity of the~~ no Incremental Term Loans shall ~~be no shorter~~ have the benefit of any financial maintenance covenant more restrictive than the ~~remaining average life to maturity~~ covenant set forth in Section 6.10 hereof unless the Revolving Loans have the benefit of ~~any then-outstanding Class of Term Loans~~such financial maintenance covenant on the same terms, (~~iii~~v) the ~~Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the~~ definitive documentation for such Incremental Term Loans shall ~~be the same~~ not include other covenants, (excluding interest rate, original issue discounts, fees and prepayment premiums) taken as a whole, that are materially more onerous to the Borrower and the Guarantors than the covenants for the Revolving Loans provided for in this Agreement, taken as a whole, unless the Revolving Loans have the benefit of such covenants on the same terms and (vi) the other terms and conditions applicable to such Incremental Term Loans (other than provisions related to maturity, amortization, interest margins, fees or prepayments) may not differ from those with respect to the ~~Term~~ Revolving Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as ~~the “Yield Differential”)~~applicable, then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), unless such terms ~~shall be~~ and conditions are reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Term Loan Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable. ~~Any Incremental Assumption Agreement may~~Each of the parties hereto hereby agrees that, ~~without consent~~ upon the effectiveness of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan ~~Commitments~~ Assumption Agreement or Incremental Revolving Loan Assumption Agreement, as applicable, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental ~~Term~~ Loan Commitment and the Incremental Loans ~~as a new Class or tranche of Term Loans~~ evidenced thereby, and ~~such other technical amendments as may be necessary or appropriate in the reasonable opinion of~~ the Administrative Agent and the Borrower ~~in connection with~~ may revise this Agreement to evidence such amendments. (c) Notwithstanding the ~~establishment~~ foregoing, no Incremental Loan Commitment shall become effective under this Section 2.25 unless on the date of such ~~new Class or tranche~~effectiveness, (i) the Borrower is in Financial Covenant Compliance (after giving effect on a pro forma basis to the incurrence of any such Incremental Term Loans, and in each case assuming for the purpose of this calculation that the proceeds of such Incremental Term Loans are not treated as Unrestricted Cash for such purpose and assuming for such purpose that any such Incremental Revolving Loan Commitments are fully drawn in the form of Loans and that the proceeds thereof are not treated as Unrestricted Cash for such purpose), (ii) the conditions set forth in Sections 4.01(b) and 4.01(c) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower; provided that, if the proceeds of any Incremental Term Loan Commitments are being used to finance a Permitted Acquisition or Permitted Drop-Down Acquisition, (x) the reference in Section 4.01(b) to the accuracy of the representations and warranties shall refer to the accuracy of only the representations and warranties that would constitute Specified Representations and the representations and warranties in the relevant acquisition agreement the failure of which to be true shall permit the buyer not to consummate the Permitted Acquisition or Permitted Drop-Down Acquisition, (y) Section 4.01(c) shall be limited to there being no Default or Event of Default under paragraph (b), (c), (g) or (h) of Article VII having occurred and continuing after giving effect to such Incremental Loan Commitments and (z) the date of determination for purposes of testing Financial Covenant Compliance under clause (i) above shall be deemed to be the date on ~~terms~~ which the definitive agreements for such Permitted Acquisition or Permitted Drop-Down Acquisition are entered into, (iii) except as otherwise specified in the applicable Incremental Term Loan Assumption Agreement and/or Incremental Revolving Loan Assumption Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Original Closing Date under Section 4.02, (iv) the Administrative Agent and each applicable Lender (other than any Defaulting Lender) shall have received all fees and expenses owed under this Agreement (including in respect of such Incremental Loan Commitments); and (v) the Borrower shall have satisfied all Mortgage Modification Requirements. (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 Revolving 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 Revolving Loan, or by allocating a portion of each Incremental Revolving Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.25~~2.16. If any Incremental Revolving Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Revolving Loan Assumption Agreement. (e) ~~Upon~~ On any Increased Amount Date on which Incremental Revolving Loan Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each ~~increase in~~ of the existing Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned Lenders shall assign to each of the Incremental Revolving ~~Credit Lender in respect of such increase~~Lenders, and each ~~such~~ of the Incremental Revolving ~~Credit Lender will automatically and without further act be deemed to have assumed, a portion~~ Lenders shall purchase from each of ~~such~~ the existing Revolving Credit ~~Lender’s~~ Lenders, at the principal amount thereof, such interests in the outstanding Revolving Loans and participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit and Swing Line Loans outstanding on such ~~that~~Increased Amount Date that will result in, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Revolving Loans and participations ~~hereunder~~ in Letters of Credit and Swing Line Loans being held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the existing Revolving Credit Lenders ~~according to~~ and Incremental Revolving Lenders ratably in accordance with their Revolving Credit ~~Percentages (~~Commitments after giving effect to the ~~increase in~~ addition of such Incremental Revolving Loan Commitments to the Revolving Credit Commitments), ~~which prepayment~~ (ii) each Incremental Revolving Loan Commitment shall be ~~accompanied by accrued interest on~~ deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and have the same terms as any existing Revolving Loan and (iii) each Incremental Revolving Lender shall become a Lender with respect to the Revolving Credit Commitments and all matters relating thereto. (f) The proceeds of any Incremental Loans ~~being prepaid and any costs incurred by any Revolving Credit Lender~~ shall be used for the purposes specified in ~~accordance with Section 2.16. The Administrative Agent and~~ the ~~Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in~~ introductory statement to this ~~Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence~~Agreement.

Appears in 1 contract

Sources: Credit Agreement (Enviva Partners, LP)

Incremental Facilities. ~~(a)~~ The Borrower ~~may~~may at any time and from time to time prior to April 30, 2006, by ~~written~~ notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as whereupon the Administrative Agent shall ~~agree~~promptly deliver a copy to each of the Lenders), request the addition of one or more new credit facilities (the "Incremental Facilities") consisting of a new tranche of term loans (an "Incremental Term Facility") or a new tranche of revolving loans (an "Incremental Revolving Facility") or a combination thereof; provided that at the time of any such request and upon the effectiveness of the Incremental Facility Amendment referred to below, no Default shall exist and the Borrower shall be in compliance with Sections 6.13, 6.14, 6.15 and 6.16, determined on a pro forma basis as if such Incremental Facility had been outstanding on the last day of the most recent fiscal quarter for testing compliance therewith. The Incremental Facilities shall be in an aggregate principal amount not exceeding (in the aggregate) $150,000,000, and each Incremental Facility shall be in an aggregate principal amount not less than $50,000,000. Each Incremental Facility (a) shall rank pari passu in right of payment and of security with the Revolving Loans and the Term Loans, (b) shall not mature earlier than six months after the Tranche E Maturity Date (but may, subject to clause (c) below, have amortization and commitment reductions prior to such date), (~~iii~~c) ~~whether such Incremental Commitments are Incremental~~ shall have a weighted average life that is longer than that of the Revolving Credit ~~Commitments or Incremental~~ Commitments, the Tranche A1 Term ~~Loan Commitments~~ Loans and the Tranche E Term Loans, taken as a whole, and (ivd) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans, in the case of ~~any request for~~ an Incremental Term ~~Loan Commitments~~Facility, ~~whether such Incremental Term Loan Commitments are commitments to make additional Term Loans~~ or the Revolving Loans, in the case of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or an Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption AgreementFacility; provided that (i) the ~~final maturity date of~~ terms and conditions applicable to any Incremental ~~Term Loans shall be no earlier than~~ Facility maturing after the ~~Latest~~ Tranche E Maturity ~~Date,~~ Date may provide for material additional or different financial or other covenants applicable only during periods after the Tranche E Maturity Date and (ii) the ~~average life to maturity of the~~ Incremental ~~Term Loans shall~~ Facilities may be ~~no shorter~~ priced differently than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and ~~(v) to~~ the ~~extent~~ Revolving Loans. Any such notice shall set forth the requested amount and terms of the relevant Incremental ~~Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above)~~Facility. The Borrower may arrange for one or more banks or other financial institutions, ~~such terms~~ each of which shall be reasonably satisfactory to the Administrative ~~Agent. Any Incremental Revolving Credit Commitment (~~Agent and the Borrower (any such bank or other financial institution being called an "Additional Lender"), to extend commitments under the Incremental ~~Revolving Loans thereunder)~~ Facility, and each existing Lender shall be ~~implemented~~ afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Facility. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment (an "Incremental Facility Amendment") to this Agreement and, as ~~an increase to~~ appropriate, the ~~Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments~~other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative ~~Agent and each applicable~~ Agent. An Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this ~~Section 2.25, including~~ Section. The effectiveness of any ~~amendments necessary~~ Incremental Facility Amendment shall be subject to ~~establish~~ the ~~Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche~~ satisfaction on the date thereof of ~~Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion~~ each of the ~~Administrative Agent and the Borrower~~ conditions set forth in ~~connection with the establishment of such new Class or tranche, in each case on terms consistent with this~~ Section ~~2.25.~~ 4.02 (~~e) Upon each increase in the Revolving Credit Commitments pursuant~~ it being understood that all references to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on "the date of such ~~increase, there are any Revolving Loans outstanding,~~ Borrowing" in such ~~Revolving Loans~~ Section 4.02 shall ~~upon~~ be deemed to refer to the ~~effectiveness~~ effective date of such Incremental ~~Revolving Credit Commitment be prepaid from the~~ Facility Amendment). The proceeds of ~~additional Revolving Loans made hereunder so that~~ the ~~Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments)~~Incremental Facilities will be used for general corporate purposes, which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceincluding consideration for Permitted Acquisitions.

Appears in 1 contract

Sources: Amendment and Restatement Agreement (Cumulus Media Inc)

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

Appears in 1 contract

Sources: Credit Agreement (Idearc Inc.)

Incremental Facilities. (a) ~~The~~ At any time and from time to time prior to the Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower ~~may,~~ may by ~~written~~ no less than three (3) Business Days’ prior notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such ~~longer or shorter period as~~ lesser number of days reasonably acceptable to the Administrative ~~Agent shall agree)~~Agent), request to add one or more new credit facilities (~~iii~~each, an “Incremental Facility”) ~~whether such~~ and consisting of one or more additional tranches of term loans (each, an “Incremental Term Facility”) or an increase in an existing class of Revolving Credit Commitments ~~are~~ (each, an “Incremental Revolving Credit ~~Commitments~~ Facility”), or ~~Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments~~a combination thereof, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment provided that (i) immediately before and after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, no Default or Event of Default has occurred and is continuing or would result therefrom (or, in the case that the proceeds of such Incremental Facility are being used to finance a Limited Condition Transaction, no Event of Default under Sections 8.01(a) and 8.01(f) shall have occurred and be continuing ~~immediately prior to or immediately after giving effect to such Incremental Commitments~~on the LCT Test Date), and (ii) subject to calculation adjustments set forth in Section 1.11 with respect to any Incremental Facility being incurred in connection with a Limited Condition Transaction, the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that~~ aggregate principal amount of all Incremental ~~Commitments have been fully funded and without netting~~ Facilities at the ~~proceeds~~ time of ~~any Incremental Loans),~~ issuance or incurrence shall not exceed ~~2.75:1.00,~~ the Maximum Additional Debt Amount at such time. (~~iii~~b) Each Incremental Term Facility shall have such terms as determined by the ~~representations~~ Borrower and ~~warranties set forth~~ the lenders providing such Incremental Term Facility; provided that (A) such Incremental Term Facility shall rank pari passu or junior in ~~Article III~~ right of payment and in ~~each other Loan Document~~ respect of the Collateral with the Term Loans, provided that, if such Incremental Term Facility is secured, all security therefor shall be ~~true and correct~~ granted pursuant to documentation that is consistent in all material respects with the Collateral Documents and (I) if secured on a pari passu basis with the Obligations, the representative for such 103 Incremental Term Facility shall enter into a pari passu intercreditor agreement with the Administrative Agent that is reasonably satisfactory to the Administrative Agent or ~~in all respects~~(II) if secured on a junior basis to the Obligations, a representative acting on behalf of the holders of such Incremental Term Facility shall have become party to a second Lien intercreditor agreement or subordination agreement that is reasonably satisfactory to the Administrative Agent, (B) no Restricted Subsidiary is a borrower or a guarantor with respect to such Incremental Term Facility unless such Restricted Subsidiary is a Loan Party which shall have previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if ~~qualified~~ secured, shall only be secured by Collateral, (C) except in the case of one-year bridge loans that are, on customary conditions convertible or exchangeable into, or are intended to be refinanced with, other instruments meeting the requirements set forth in this clause (C) and clause (D) below (“Extendable Bridge Loans”), no Incremental Term Facility shall have a final maturity date earlier than the then existing Latest Maturity Date with respect to Revolving Loans and Term Loans (if any), and with respect to an Incremental Term Facility ranking junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall mature on or prior to the date that is 91 days after the then existing Latest Maturity Date with respect to Revolving Loans and Term Loans (if any), (D) except in the case of Extendable Bridge Loans with respect to their stated maturity date, no Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-outstanding Term Loans (if any) (without giving effect to nominal amortization for periods where amortization has been eliminated as a result of a prepayment of the applicable Term Loans) except as may be required to ~~materiality~~achieve tax fungibility with any existing class of Term Loan to the extent intended to be fungible, and with respect to an Incremental Term Facility that ranks junior in respect of the Collateral with the Term Loans, no such Incremental Term Facility shall have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-outstanding Term Loans (if any), plus 91 days, (E) for purposes of mandatory prepayments, the first such Incremental Term Facility may establish mandatory prepayments that, when take as a whole, are customary for term loans (as reasonably determined by the Borrower), and for any subsequent Incremental Term Facility at a time when other Term Loans are then outstanding, shall be treated no more favorably than the then-outstanding Term Loans of the Borrower except those that only apply after the then existing Latest Maturity Date with respect to Term Loans, (F) the affirmative and negative covenants (but not the financial maintenance covenants) and events of default (other than maturity, fees, discounts, interest rate, redemption terms and redemption premiums) of such Incremental Term Loans, if not consistent with the terms of this Agreement as in effect immediately prior to the date of the applicable Incremental Facility Amendment, shall not be materially more restrictive to the Loan Parties when taken as a whole (as reasonably determined by the Borrower) than the terms of this Agreement as in effect immediately prior to the date of the applicable Incremental Facility Amendment, (G) the Incremental Term Facility shall not have the benefit of any financial maintenance covenant more restrictive than the Financial Covenants (unless, in the case of the foregoing clauses (F) or (G), (x) the Revolving Facility has the benefit of such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant, on ~~and~~ the same terms, (y) the Revolving Facility has in the future been provided with the benefit of such more restrictive affirmative or negative covenants or events of default, or such a financial maintenance covenant, in which case such Incremental Term Facility incurred after such future date may be provided with the benefit of the same more restrictive affirmative or negative covenants or events of default, or the same financial maintenance covenant, on the same or looser terms, or (z) such more restrictive affirmative or negative covenants or events of default, or such financial maintenance covenant only apply after the Latest Maturity Date with respect to the Term Loans (if any) in effect as of the ~~date~~ time such Incremental ~~Commitments become effective~~ Term Facility is incurred), (H) if an Incremental Facility ranks junior in right of security or ~~if such representation and warranty relates~~ payment priority to ~~another date, such~~ the other ~~date) and (iv) the terms of such Incremental Commitments and the Incremental~~ then-outstanding Term Loans or is unsecured, the Incremental ~~Revolving Loans thereunder shall comply with Section 2.25(c).~~Facility will be established as a separate facility from the then existing Term Loans, and/or the Borrower may issue, in lieu thereof (and subject to corresponding restrictions (c) Each Incremental Revolving Credit Facility shall have terms identical to those applicable to such class of Revolving Credit Commitments (including maturity date and interest rates) and shall be ~~established~~ incurred pursuant to the same documentation as applicable to the initial Revolving Credit Commitment (other than the amendment evidencing such Incremental Revolving Credit Facility); provided that (A) no Incremental Revolving Credit Facility shall have a final maturity date earlier than, or require scheduled amortization or mandatory commitment reduction prior to, the then existing Latest Maturity Date with respect to Revolving Credit Commitments, (B) the Incremental Revolving Credit Facility shall not have the benefit of any covenant or terms more restrictive than the covenant or terms applicable to the initial Revolving Credit Commitment (unless, in the case of this clause (B) the Revolving Credit Facility has the benefit of such covenants on the same terms or (y) such covenant only apply after the Latest Maturity Date with respect to the Revolving Credit Facility in effect as of the time such Incremental Revolving Credit Facility is incurred) and (C) no Restricted Subsidiary shall be a borrower or a guarantor with respect to such Incremental Revolving Credit Facility unless such Restricted Subsidiary is a Loan Party that has previously or substantially concurrently guaranteed or borrowed, as applicable, the Obligations, and, if secured, shall only be secured by Collateral. (d) Each notice from the Borrower pursuant to this Section 2.17 shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Any additional bank, financial institution, existing Lender or other Person that elects to provide Commitments under an Incremental Facility shall be reasonably satisfactory to the Borrower and, in the case of any Incremental Revolving Credit Facility and, to the extent such consent would be required for an assignment of such Loans or Commitments pursuant to Section 9.06, the L/C Issuers (such consent not to be unreasonably withheld, delayed or conditioned) (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Facility Amendment”) ~~relating~~ to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender (in the case of this Agreement and, as appropriate, any other Loan Document, as applicable) and the Administrative Agent; provided that, the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned) will be required with respect to any such Additional Lender if such consent would be required for an assignment of such Loans and Commitments pursuant to Section 9.06 to such Additional Lender. No Lender shall be obligated to provide any Commitments under an Incremental Facility, unless it so agrees. Commitments in respect of any Incremental Facilities shall become Commitments under this Agreement. ~~The terms of the~~ An Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be ~~necessary~~ necessary, advisable or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (Tutor Perini Corp)

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

Appears in 1 contract

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

Incremental Facilities. (a) ~~The~~ So long as no Event of Default exists or would arise therefrom, the Borrower ~~may~~shall have the right, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time after the Closing Date, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) to request new term loan commitments under one or more new term loan credit facilities to be included in this Agreement (the ~~amount of the~~ “Incremental ~~Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000~~Term Loan Commitments”), and (ii) to request new commitments under one or more new revolving facilities to be included in this Agreement (the “Incremental Revolving Commitments”, together with the Incremental Term Loan Commitments, the “Incremental Commitments”), provided, that, (i) after giving pro forma effect to any incurrence or discharge of Indebtedness on the date the applicable Incremental Commitment Agreement (as defined below) becomes effective and all related transactions as if completed on the first day of the twelve month period ending on the most recent Test Date, the Borrower would have been in compliance with Section 8.1(a) on the Test Date (assuming compliance with Section 8.1(a), as originally in effect or amended in accordance with the date hereof, was required on the Test Date) (and the Borrower shall deliver a certificate, no later than two Business Days prior to the date on which such Incremental ~~Commitments are requested to~~ Commitment shall become effective ~~(which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ to the Administrative Agent ~~shall agree~~certifying that the Borrower is in compliance with this clause (i)), ) and (~~iii~~ii) ~~whether~~ the aggregate then outstanding principal amount of the sum of all unutilized Incremental Commitments and Incremental Loans does not exceed $300,000,000. Any loans made in respect of any such Incremental Commitment shall be made by creating a new Tranche. (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 ~~are Incremental Revolving Credit Commitments~~ (or ~~Incremental Term Loan Commitments and~~ any portion thereof) may be made by any existing Lender or by any other bank or financial institution (ivany such bank or other financial institution, an “Additional Lender”) subject, in the case of any ~~request for~~ Incremental ~~Term Loan Commitments, whether~~ Revolving Commitments (if such ~~Incremental Term Loan Commitments are commitments to make additional Term Loans of~~ Additional Lender is not already a Lender hereunder or any ~~then outstanding Class or commitments to make Term Loans~~ affiliate of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (vLender hereunder) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent ~~of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion~~ of the Administrative Agent ~~and the Borrower,~~ (such consent not to ~~effect the provisions~~ be unreasonably withheld or delayed). Any allocation of ~~this Section 2.25, including~~ any ~~amendments necessary~~ Incremental Commitments to ~~establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may~~ any Affiliated Lender shall be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect subject to the ~~increase in Revolving Credit Commitments~~terms of Section 11.6(g), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (KAR Auction Services, Inc.)

Incremental Facilities. (a) The Borrower may, by written notice to the Administrative ~~Agent from time to time~~Agent, request Incremental Term Loan Commitments in an ~~amount such that, after giving effect thereto, the~~ aggregate amount not to exceed the Maximum Facility Amount at such time, from one or more Incremental Term Lenders (which may include any existing Lender willing to provide the same, in their own discretion); provided that each such Person, if not already a Lender hereunder, shall be subject to the approval of ~~Incremental Commitments established at or prior to such time does not exceed $100,000,000~~the Administrative Agent (acting reasonably). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $~~500,000~~ 1,000,000 and a minimum amount of $~~5,000,000),~~ 10,000,000 or equal to the remaining Maximum Facility Amount) and (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such ~~notice (or such longer or shorter period as~~ notice, unless otherwise agreed to by the Administrative ~~Agent shall agree~~Agent)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) ~~It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred~~ The Borrower and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption ~~Agreement providing for such Incremental Commitments,~~ Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the ~~Incremental~~ Commitment of ~~each Incremental~~ such Lender. ~~Any~~ Each Incremental Assumption ~~Agreement may include conditions for delivery~~ Amendment in respect of ~~opinions~~ Incremental Term Loan Commitments shall specify the terms of ~~counsel~~ the Incremental Term Loans to be made thereunder. (c) The scheduled amortization and ~~other documentation consistent~~ maturity of any Incremental Term Loans shall be as set forth in the applicable Incremental Assumption Amendment (including any technical changes to the Term Loans that are necessary to make any such Incremental Term Loans fungible with the outstanding Term Loans. (d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.21 unless (i) the conditions set forth in Section ~~4.02, all to the extent reasonably requested by~~ 4.2 are satisfied and (ii) the Administrative Agent or shall have received certified copies of authorizing resolutions of the ~~other parties to~~ Board of Directors of the Borrower authorizing such Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.~~ Term Loan Commitments. (e) Any Incremental Assumption ~~Agreement~~ Amendment may, without the consent of any other ~~Lender~~Lenders and notwithstanding anything in Section 9.01 to the contrary, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.21. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Micron Technology Inc)

Incremental Facilities. (a) ~~The Borrower may~~At any time or from time to time after the Restatement Effective Date and before the Extended Termination Date, the Borrower, by written notice to ~~the~~ Administrative ~~Agent from time to time~~Agent, may request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the establishment of one or more additional tranches of term loans or increases in the amount of any existing term loan tranches (the “Incremental Term Loans”) and/or (ii) increases in the Revolving Loan Commitments (the “Incremental Revolving Commitments” and, together with the Incremental ~~Commitments being requested~~ Term Loans, the “Incremental Credit Increases”); provided that each Incremental Credit Increase shall be in an aggregate principal amount that is not less than $50,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Credit Increases shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new ClassAgent. The Borrower may ~~seek~~ approach any Lender or any Person (other than an Ineligible Assignee) to provide all or a portion of the Incremental ~~Commitments from existing Lenders~~ Credit Increases; provided that (~~each~~ i) no Lender will be required to provide such Incremental Credit Increase and (ii) any entity providing all or a portion of ~~which~~ the Incremental Credit Increase that is not a Lender, an Affiliate of a Lender or an Approved Fund shall not be an Ineligible Assignee and shall be ~~entitled~~ reasonably acceptable to ~~agree~~ the Administrative Agent (with such acceptance by the Administrative Agent to not be unreasonably withheld or ~~decline to participate in its sole discretion) or any Additional Lender~~delayed). (b) It In each case, such Incremental Credit Increase shall ~~be a condition precedent to~~ become effective as of the ~~effectiveness of any Incremental Commitment~~ applicable Increased Amount Date, provided that (i) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental ~~Commitments~~Credit Increase, (ii) the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all~~ Borrower shall be in compliance with Section 7.2.4 both before and after giving effect to such Incremental ~~Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00~~Credit Increases, (iii) the ~~representations and warranties set forth in Article III and in each other Loan Document~~ Senior Secured Leverage Ratio shall be ~~true~~ less than 2.25 to 1.00 both before and ~~correct in all material respects~~ after giving effect to such Incremental Credit Increases (~~or in all respects~~assuming, ~~if qualified as to materiality) on and as~~ for the purposes of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to calculations under this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, clause (iii~~) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment~~ ), that all Revolving Commitments are fully drawn and ~~with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans~~that all Permitted Securitization is fully utilized), (iv) ~~if the All-in Yield on such~~ any Incremental Term Loan shall mature on or after the Extended Termination Date, (ivv) the interest rate margin in respect of Incremental Revolving Loans ~~exceeds~~ (including upfront fees in connection therewith in excess of any upfront fees issued or paid in respect of any then outstanding Revolving Loans, but excluding arrangement, structuring and underwriting fees) shall not exceed the ~~initial All~~Applicable Margin for the Revolving Loans of any Extending Revolving Loan Lender or Non-~~in Yield of the Tranche B Term Loans~~ Extending Revolving Loan Lender by more than 50 basis points (or if it does so exceed either such Applicable Margin by more than 50 basis points, the ~~amount~~ Applicable Margin so exceeded shall be increased so that the interest rate margin in respect of such Incremental Revolving Loan (giving effect to any upfront fees in connection therewith in excess ~~above 50 basis points being referred to herein as the “Yield Differential”)~~of any upfront fees issued or paid in respect of any then outstanding Loans, ~~then~~ but excluding arrangement, structuring and underwriting fees) is no greater than the Applicable Margin for such Revolving Loans minus 50 basis points and (vvi) the ~~Tranche B Term Loans~~ Incremental Credit Increases shall ~~automatically~~ be ~~increased~~ effected pursuant to one or more joinder agreements in a form reasonably acceptable to the Administrative Agent (each, a “Joinder Agreement”) executed and delivered by the ~~Yield Differential~~Borrower, ~~effective upon~~ the ~~making~~ applicable Incremental Lender and the Administrative Agent pursuant to which such Incremental Lender agrees to be bound to the terms of this Agreement as a Lender; provided that the Lenders committing to provide such Incremental Term Loans the proceeds of which are to be used to finance a Permitted Acquisition may agree to waive the conditions set forth in the foregoing clauses (i), (ii) and (viii) without the consent of any other Lenders. Any Incremental Term Loans made on an Increased Amount Date shall be designated a separate tranche of Incremental Term Loans for all purposes of this Agreement. (c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the ~~extent~~ satisfaction of the foregoing terms and conditions, (a) each of the Lenders with Revolving Loan Commitments shall assign to each Person with an Incremental Revolving Commitment (each, a “Incremental Revolving Lender”) and each of the Incremental ~~Term Loans are inconsistent~~ Revolving Lenders shall purchase from each of the Lenders with Revolving Loan Commitments, at the ~~terms set forth herein (except as set forth in clause (i) through (iv) above)~~principal amount thereof, such ~~terms~~ interests in the Revolving Loans outstanding on such Increased Amount Date as shall be ~~reasonably satisfactory~~ necessary in order that, after giving effect to all such assignments and purchases, the Revolving Loans will be held by existing Revolving Loan Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Loan Commitments after giving effect to the ~~Administrative Agent. Any~~ addition of such Incremental Revolving ~~Credit~~ Commitments to the Revolving Loan Commitments, (b) the participations held by the Revolving Loan Lenders in the Revolving Exposure immediately prior to such Increased Amount Date shall be automatically reallocated so as to held by existing Revolving Loan Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Loan Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Loan Commitments, (c) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Loan Commitment and each Loan made thereunder (an “Incremental Revolving Loan”) shall be deemed, for all purposes, a Revolving Loan and (d) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto. The terms and provisions of the Incremental Revolving Loans ~~thereunder)~~ and Incremental Revolving Commitments shall be ~~implemented as an increase to the Total Revolving Credit Commitments and shall be on terms~~ identical to the ~~existing~~ Revolving ~~Credit Commitments (~~Loans and the Revolving ~~Loans thereunder)~~Loan Commitments. (d) ~~In connection with~~ On any Increased Amount Date on which any Incremental ~~Commitments~~Term Loans are to be made, subject to the ~~Borrower~~satisfaction of the foregoing terms and conditions, (i) each Person with a commitment to make an Incremental Term Loan (each, an “Incremental Term Loan Lender”) shall make an Incremental Term Loan to the ~~Administrative Agent~~ Borrower in an amount equal to such commitment amount, and (ii) each ~~applicable~~ Incremental Term Loan Lender shall ~~execute and deliver~~ become a Lender hereunder with respect to the ~~Administrative Agent an~~ Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Term Loans made pursuant thereto. (e) Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.9. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (Hanesbrands Inc.)

Incremental Facilities. xxviii) (a) ~~The Borrower may, by written~~ Upon notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be 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 may solicit the existing Lenders or prospective lenders determined by the Borrower to provide (x) increases in ~~minimum increments~~ the commitments to the Revolving Credit Facility (such increases, “Incremental Revolving Commitments”) and/or (y) incremental commitments consisting of one or more new tranches of term loans (each, an “Incremental Term Facility” and together with any Incremental Revolving Commitments, the “Incremental Facilities”) in an aggregate amount not to exceed $~~500,000~~ 1,000,000,000, on terms agreed by the Borrower and ~~a minimum amount~~ the lender(s) providing the respective Incremental Facility (subject to the following clauses of ~~$5,000,000~~this Section 2.22), . (iib) ~~the date on which~~ Any such Incremental ~~Commitments are requested to become effective~~ Facility shall be unsecured. Additionally, (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (ivi) in the case of any ~~request for~~ 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 ~~Loan Commitments~~Facility, ~~whether~~ Incremental Term Loans to be made under such Incremental Term ~~Loan Commitments are commitments~~ Facility shall be subject to ~~make additional~~ 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 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, 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 ~~Class or commitments to make~~ Incremental Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental LoansFacility), shall be reasonably satisfactory to the Administrative Agent (it being understood that covenants and events of default not ~~exceed 2.75:1.00~~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 representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c)~~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 ~~Commitments~~ Facility, and nothing contained herein constitutes, or shall be ~~established~~ 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) 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, but no less than five Business Days) from the date of delivery of such notice to the Lenders). Incremental Facilities (or any portion thereof) may be 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 Lender”), provided that the Administrative Agent (and, in the case of any Incremental Revolving Commitments in respect of the Revolving 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 case may be, providing such Incremental 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 be deemed to have declined to provide any portion of such Incremental Facility. The 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 Incremental Revolving Commitment in respect of the Revolving 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 ~~Assumption Agreement~~Facility Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity DateBorrower, ~~(ii) the average life~~ each Lender agreeing to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on provide such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)Facility, ~~then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential~~if any, ~~effective upon the making of such~~ each Incremental ~~Term Loans~~ Lender, if any, and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. ~~Any~~ An Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to ~~this Agreement and the other~~ any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section ~~2.25~~2.22. (f) If any Incremental Facilities are added in accordance with this Section 2.22, ~~including any amendments necessary to establish~~ the Borrower, in consultation with the Administrative Agent, shall determine the effective date (the “Incremental Commitments Effective Date”) and the final allocation of such Incremental Facilities. The Administrative Agent shall promptly notify the Lenders of the final allocation of such Incremental Facilities and the Incremental ~~Term Loan~~ Commitments Effective Date. (g) The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent, each Lender party thereto, if any, and the Incremental ~~Term Loans as a new Class~~ Lenders, if any, be subject to the satisfaction on the Incremental Commitments Effective Date of each of the following conditions: (i) the Administrative Agent shall have received on or ~~tranche~~ prior to the Incremental Commitments Effective Date each of ~~Term Loans and such other technical amendments as may be necessary~~ the following, each dated the Incremental Commitments Effective Date unless otherwise indicated or ~~appropriate in the reasonable opinion of~~ agreed to by the Administrative Agent and each in form and substance reasonably satisfactory to the Administrative Agent: (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 Event of Default exists or would exist after giving effect thereto and all representations and warranties of the Borrower under this Agreement shall be true and correct in ~~connection with~~ all material respects immediately before and after giving effect thereto (except to the ~~establishment~~ extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such ~~new Class~~ earlier date), provided that to the extent the proceeds of any Incremental Facility are being used to finance an acquisition or ~~tranche~~any other permitted investment, ~~in each case on terms consistent~~ if so agreed by the Lenders providing such Incremental Facility, (x) the only representations and 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 and (y) at the election of the Borrower, the certifications to be made by the Borrower with ~~this Section 2.25~~respect to financial covenant compliance and the absence of an Event of Default may be subject to customary “SunGard” or other applicable “certain funds” conditionality provisions. (eh) On the Incremental Commitments Effective Date, each Lender or Incremental Lender which is providing a portion of an Incremental Facility (i) shall become a Lender for all purposes of this Agreement and the other Loan Documents and (ii) shall have a commitment under such Incremental Facility which shall become a Commitment hereunder. (i) Upon each ~~increase in the~~ establishment of Incremental Revolving ~~Credit~~ Commitments pursuant to this Section ~~‎2.25~~2.22, (i) each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment~~ immediately prior to the effectiveness of such ~~increase~~ Incremental 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 ~~Credit Lender in respect of such increase~~Commitments (each an “Incremental Revolving Commitments Increase Lender”), and each such Incremental Revolving ~~Credit~~ Commitments Increase Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing~~ Revolving ~~Credit Lender~~▇▇▇▇▇▇’s ~~participations~~ 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 ~~participations~~participation interests, the percentage of the aggregate outstanding ~~participations~~ participation interests hereunder in Letters of Credit held by each Revolving ~~Credit~~ Lender (including each such Incremental Revolving ~~Credit~~ Commitments Increase Lender) will equal ~~its~~ such Revolving ~~Credit Percentage. If~~Lender’s Applicable Revolving Percentage and (ii) if, on the date of effectiveness of such ~~increase~~Incremental Revolving Commitments, there are any Revolving Loans outstanding, the Administrative Agent and the Borrower shall take those steps which they deem, by mutual agreement, necessary and appropriate to result in each Revolving Lender (including each Incremental Revolving Commitments Increase Lender) having a pro-rata share of the outstanding Revolving Loans based on each such Revolving ~~Loans shall upon the effectiveness of such Incremental~~ Lender’s Applicable Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (Percentage immediately after giving effect to ~~the increase in~~ such Incremental Revolving ~~Credit~~ Commitments~~), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16~~. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, ~~pro~~ pro-rata borrowing and ~~pro~~ pro-rata payment requirements contained elsewhere in this Agreement shall not apply to ~~the transactions~~ any transaction that may be effected pursuant to the immediately preceding sentence. (j) The provisions of this Section 2.22 shall supersede any provision of Section 2.19 or 9.02 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Huntington Ingalls Industries, Inc.)

Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, (i) the Aggregate Incremental Amount does not exceed an amount such that the First Lien Leverage Ratio, determined on an Incremental Pro Forma Basis after giving effect thereto, does not exceed 2.50 to 1.00 and (ii) the aggregate amount of Incremental Revolving Credit Commitments ~~established at or prior to such time~~ and Incremental Revolving Loans does not exceed ~~$100,000,000~~the Incremental Revolver Cap. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $~~500,000~~ 1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such ~~longer or~~ shorter ~~period~~ periods as the Administrative Agent shall agree)), ) and (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan ~~Commitments and (iv) in the case of any request for Incremental Term Loan~~ Commitments~~, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class~~. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment and the incurrence of the Incremental Loans that (i) except as otherwise agreed by the lenders providing such Incremental Loans to finance a Permitted Acquisition, no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental ~~Commitments~~Commitment or the incurrence of such Incremental Term Loans, as applicable, (ii) (A) the Borrower would be in compliance with the financial covenants contained in Section 6.08 and 6.09, determined on an Incremental Pro Forma Basis, and (B) the Total Leverage ~~Ratio~~Ratio shall not exceed 3.75:1.0 at such time, determined on a an Incremental Pro Forma Basis ~~(assuming that all Incremental Commitments have been fully funded~~ and ~~without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00,~~ (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental ~~Term Loans or Incremental Revolving~~ Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Each Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder) (it being understood that, if required to consummate an Incremental Revolving Credit Commitment, the interest rate margins, rate floors and undrawn fees on the Revolving Facility may be increased). The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Loan Lenders and set forth in an Additional Credit Extension Amendment; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Tranche B Term Loan Maturity Date, (ii) the Weighted Average Life to Maturity of the Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (iii) the Incremental Term Loans will rank pari passu in right of payment and with respect to security with the Tranche B Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Credit Party, (iv) any Incremental Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments or commitment reductions hereunder, as specified in the applicable Additional Credit Extension Amendment, (v) if the All-in Yield on such Incremental Term Loans exceeds the All-in Yield for the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans and (vi) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (v) above), such terms shall be reasonably satisfactory to the Administrative Agent. (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an ~~Incremental Assumption Agreement providing for such Incremental Commitments,~~ Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each ~~Incremental Assumption Agreement~~Additional Credit Extension Amendment. Any ~~Incremental Assumption Agreement~~ Additional Credit Extension Amendment may, without consent of any other Lender, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term ~~Loan Commitments and~~ Loans and/or Incremental Term ~~Loans~~ Commitments as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25~~. (e)~~ . Upon each increase in the Revolving Credit Commitments pursuant to this Section ~~‎2.25~~2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its ~~Revolving Credit~~ Pro Rata Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder ~~so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages~~ (~~after giving effect to the~~ reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) This Section 2.25 shall supersede any provisions in Section 2.17 or Section 9.08 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Walter Investment Management Corp)

Incremental Facilities. (a) The ~~Borrower may~~Company may on one or more occasions, by written notice to the Administrative ~~Agent from time to time~~Agent, request ~~Incremental Commitments in an amount such that, after giving effect thereto~~(i) during the Availability Period, the ~~aggregate amount~~ establishment of Incremental Revolving Commitments ~~established at or prior to~~ and/or (ii) the establishment of Incremental Term Loan Commitments, in each case, in minimum increments of the Dollar Amount of $10,000,000. Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ specify (iA) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Loan Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent, and (B) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving ~~Credit~~ Commitments or Incremental Term Loan ~~Commitments and~~ Commitments, as applicable, being requested (ivit being agreed that (x) any Lender approached to provide any Incremental Revolving Commitment or Incremental Term Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Commitment or Incremental Term Loan Commitment, (y) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to (i) the Administrative Agent (except in the case of such Person that is an Affiliate of a Lender or an Approved Fund) and, (ii) in the case of any ~~request for~~ proposed Incremental Revolving Lender, the Issuing Lenders and the Swingline Lender, in each case of clauses (i) and (ii), such approval not to be unreasonably withheld, and (z) none of the Persons described in the foregoing clauses (x) and (y) may be an Ineligible Institution). Notwithstanding anything herein to the contrary, the aggregate Dollar Amount (calculated based on the Exchange Rate in effect on the date such Indebtedness was incurred, in the case of Incremental Term Loan Commitments, ~~whether such~~ or first committed, in the case of Incremental Revolving Commitments) of all Incremental Revolving Commitments and Incremental Term Loan Commitments ~~are commitments~~ established pursuant to ~~make additional Term Loans~~ this Section 2.20 shall not exceed $200,000,000. No consent of any ~~then outstanding Class~~ Lender (other than the Lenders participating in the Incremental Revolving Commitment or ~~commitments to make~~ Incremental Term ~~Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which~~ Loan Commitment) shall be ~~entitled~~ required for any increase pursuant to ~~agree or decline to participate in its sole discretion) or any Additional Lender~~this Section 2.20. (b) ~~It shall be a condition precedent to the effectiveness~~ The terms and conditions of any Incremental Revolving Commitment and Revolving Loans and other extensions of credit to be made thereunder shall be identical to those of the Commitments and Revolving Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the Maturity Date (but may have amortization and/or customary prepayments prior to such date), (ii) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and (iii) shall have the same Guarantees as the Revolving Loans; provided that (x) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (y) the Incremental Term Loans may be priced differently (whether in the form of interest rate margin, upfront fees, original issue discount, call protection or otherwise) than the Revolving Loans. Any Incremental Term Loan Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Loan Commitments and Incremental Term Loans for all purposes of this Agreement. (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrowers, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that (other than with respect to the incurrence of Incremental Term Loans the proceeds of which shall be used to consummate a Business Acquisition permitted by this Agreement for which the Company has determined, in good faith, that limited conditionality is reasonably necessary (any such acquisition, a “Limited Conditionality Acquisition”) as to which conditions (i) through (iii) below shall not apply) no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to or and immediately after giving effect (including pro forma effect) to such Incremental ~~Commitments~~Commitments and the making of Loans and issuance of Letters of Credit thereunder to be made on such date, (ii) on the ~~Total Leverage Ratio~~date of effectiveness thereof, ~~determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties of each Obligor set forth in ~~Article III and in each other~~ the Loan ~~Document~~ Documents shall be true and correct in all material respects (or, if qualified by materiality or “Material Adverse Effect”, in all respects~~, if qualified as to materiality~~) on and as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another~~ date, ~~such other date~~(iii) ~~and (iv) the terms of~~ after giving effect to such Incremental Commitments and the ~~Incremental Term~~ making of Loans or and other extensions of credit thereunder to be made on the date of effectiveness thereof (and assuming, in the case of any Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c). (c)~~ Commitments to be made on the date of effectiveness thereof, that such Incremental Revolving Commitments are fully drawn but excluding the proceeds of any such Incremental Commitments for purposes of netting cash and Permitted Investments in the calculation of the Leverage Ratio), the Company shall be ~~established~~ in pro forma compliance with the financial covenants set forth in Sections 6.14 and 6.15, (iv) the Borrowers shall make any payments required to be made pursuant to ~~an amendment (an “~~Section 2.16 in connection with such Incremental ~~Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower~~ Commitments and the ~~Incremental Term Lenders~~ related transactions under this Section, and (v) the other conditions, if any, set forth in the applicable Incremental ~~Assumption Agreement~~Facility Agreement are satisfied; provided further that no Incremental Term Loans in respect of a Limited Conditionality Acquisition shall become effective unless (1) as of the date of execution of the definitive acquisition documentation in respect of such Limited Conditionality Acquisition (the “Limited Conditionality Acquisition Agreement”) by the parties thereto, no Default or Event of Default shall have occurred and be continuing or would result from entry into the Limited Conditionality Acquisition Agreement, (2) as of the date of the borrowing of such Incremental Term Loans, no Event of Default under clauses (a), (b), (h), (i) or (j) of Article VII is in existence immediately before or after giving effect (including on a pro forma basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the ~~final maturity~~ representations and warranties of each Obligor set forth in the Loan Documents shall be true and correct in all material respects (or, in the case of any representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of the date of ~~any Incremental Term Loans shall be no earlier than~~ execution of the ~~Latest Maturity Date~~applicable Limited Conditionality Acquisition Agreement by the parties thereto, (ii4) ~~the average life to maturity~~ as of the date of the borrowing of such Incremental ~~Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of~~ Term Loans, customary “Sungard” representations and warranties (~~iii)~~ with such representations and warranties to be reasonably determined by the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on Lenders providing such Incremental Term ~~Loans exceeds~~ Loans) shall be true and correct in all material respects (or, in the ~~initial All-~~case of any representation or warranty qualified by materiality or Material Adverse Effect, in ~~Yield of~~ all respects) immediately prior to, and after giving effect to, the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making incurrence of such Incremental Term Loans and (v5) ~~to the extent the terms~~ as of the ~~Incremental Term Loans are inconsistent~~ date of execution of the related Limited Conditionality Acquisition Agreement by the parties thereto, the Company shall be in pro forma compliance with the ~~terms set forth herein (except as~~ financial covenants set forth in ~~clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent~~Sections 6.14 and 6.15. ~~Any~~ Each Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this Section ~~2.25, including~~ and no consent of any ~~amendments necessary to establish~~ Lender (other than the Lenders participating in the increase or any Incremental Term Loan) shall be required for any increase in Commitments or Incremental Term Loan pursuant to this Section 2.20. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, (i) such Incremental Lender shall be deemed to be a “Lender” (and a Lender in respect of Commitments and ~~Incremental Term~~ Loans ~~as a new Class~~ of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or ~~tranche~~ Lenders in respect of ~~Term~~ Commitments and Loans of the applicable Class) hereunder and ~~such~~ shall be bound by all agreements, acknowledgements and other ~~technical amendments as may be necessary~~ obligations of Lenders (or ~~appropriate~~ Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the ~~reasonable opinion~~ case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the ~~Administrative Agent and~~ event such Incremental Lender already has a Revolving Commitment, shall increase) the ~~Borrower in connection with the establishment~~ Revolving Commitment of such ~~new Class or tranche~~Incremental Lender and (B) the total Revolving Commitments shall be increased by the amount of such Incremental Revolving Commitment, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment.” For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Credit Exposure of the Incremental Revolving Lender holding such Revolving Commitment, and the Applicable Percentage of all the Lenders, shall automatically be adjusted to give effect thereto. (e) ~~Upon each increase in~~ On the date of effectiveness of any Incremental Revolving ~~Credit Commitments pursuant to this Section ‎2.25~~Commitments, each ~~Revolving Credit~~ Lender with a ~~Revolving Credit~~ Commitment (immediately prior to giving effect to such ~~increase will automatically and without further act be deemed to have assigned~~ Incremental Revolving Commitments) shall assign to each Incremental Revolving ~~Credit~~ Lender ~~in respect of~~ holding such ~~increase~~Incremental Revolving Commitment, and each such Incremental Revolving ~~Credit~~ Lender ~~will automatically~~ shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Loans and ~~without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s~~ participations ~~hereunder~~ in ~~outstanding~~ Letters of Credit outstanding on such date as shall be necessary in order that, after giving effect to ~~each~~ all such ~~deemed assignment~~ assignments and ~~assumption of participations~~purchases, ~~the percentage of the aggregate outstanding~~ such Loans and participations ~~hereunder~~ in Letters of Credit will be held by ~~each~~ all the Lenders with Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon Commitments ratably in accordance with their Applicable Percentages after giving effect to the effectiveness of such Incremental Revolving ~~Credit~~ Commitment. (f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Loan Commitment ~~be prepaid~~ of any Series shall make a loan to the relevant Borrower in an amount equal to such Incremental Term Loan Commitment on the date specified in such Incremental Facility Agreement. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of any notice from the ~~proceeds~~ Company referred to in paragraph (a) above and of ~~additional~~ the effectiveness of any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving ~~Loans made hereunder so that~~ Commitments, of the ~~Revolving Loans are thereafter held by~~ Applicable Percentages of the ~~Revolving Credit~~ Lenders ~~according to their Revolving Credit Percentages (~~after giving effect thereto and of the assignments required to ~~the increase in Revolving Credit Commitments), which prepayment shall~~ be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected made pursuant to ~~the immediately preceding sentence~~paragraph (e) above.

Appears in 1 contract

Sources: Credit Agreement (Fei Co)

Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, (i) the Aggregate Incremental Amount does not exceed the sum of (A) $200,000,000 and (B) an additional amount such that the First Lien Net Leverage Ratio, determined on an Incremental Pro Forma Basis after giving effect thereto (including the application of proceeds thereof, but without netting the proceeds thereof), does not exceed 3.00 to 1.00 as of the last day of the most recently ended Calculation Period and (ii) the aggregate amount of Incremental Revolving Credit Commitments ~~established at or prior to such time~~ and Incremental Revolving Loans does not exceed ~~$100,000,000~~the Incremental Revolver Cap. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $~~500,000~~ 1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such ~~longer or~~ shorter ~~period~~ periods as the Administrative Agent shall agree)), ) and (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan ~~Commitments and (iv) in the case of any request for Incremental Term Loan~~ Commitments~~, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class~~. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment and the incurrence of the Incremental Loans that (i) except as otherwise agreed by the lenders providing such Incremental Loans to finance a Permitted Acquisition, no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental ~~Commitments~~Commitment or the incurrence of such Incremental Term Loans, as applicable, (ii) (A) the Total Leverage ~~Ratio,~~ Ratio of the Borrower as of the last day of the most recently ended Calculation Period (determined on a an Incremental Pro Forma ~~Basis~~ Basis) shall not exceed the applicable ratio for such period set forth in the definition of Incurrence Total Leverage Ratio and (~~assuming that all~~ B) the Total Net Leverage Ratio as of the last day of the most recently ended Calculation Period (determined on an Incremental ~~Commitments have been fully funded and~~ Pro Forma Basis, including giving effect to the application of proceeds thereof, but without netting the proceeds ~~of any Incremental Loans),~~ thereof) shall not exceed ~~2.75:1.00,~~ 4.00:1.00 and (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental ~~Term Loans or Incremental Revolving~~ Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Each Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder) (it being understood that, if required to consummate an Incremental Revolving Credit Commitment, the interest rate margins, rate floors and undrawn fees on the Revolving Facility may be increased). The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Loan Lenders and set forth in an Additional Credit Extension Amendment; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Tranche B Term Loan Maturity Date, (ii) the Weighted Average Life to Maturity of the Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (iii) the Incremental Term Loans will rank pari passu in right of payment and with respect to security with the Tranche B Term Loans and the Revolving Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Credit Party, (iv) any Incremental Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments or commitment reductions hereunder, as specified in the applicable Additional Credit Extension Amendment, (v) if the All-in Yield on such Incremental Term Loans exceeds the All-in Yield for the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans and (vi) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (v) above), such terms shall be reasonably satisfactory to the Administrative Agent. (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an ~~Incremental Assumption Agreement providing for such Incremental Commitments,~~ Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each ~~Incremental Assumption Agreement~~Additional Credit Extension Amendment. Any ~~Incremental Assumption Agreement~~ Additional Credit Extension Amendment may, without consent of any other Lender, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term ~~Loan Commitments and~~ Loans and/or Incremental Term ~~Loans~~ Commitments as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25~~. (e)~~ . Upon each increase in the Revolving Credit Commitments pursuant to this Section ~~‎2.25~~2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its ~~Revolving Credit~~ Pro Rata Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder ~~so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages~~ (~~after giving effect to the~~ reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (e) This Section 2.25 shall supersede any provisions in Section 2.17 or Section 9.08 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (Walter Investment Management Corp)

Incremental Facilities. (ai) ~~The~~ Borrower or PR Borrower may, by written notice to ~~the~~ Administrative ~~Agent from time to time~~Agent, request the addition of additional term loans to be made hereunder (the "Incremental ~~Commitments~~ Term Loans") in an aggregate principal amount not to exceed the Additional Secured Indebtedness Amount; provided, however, that both (x) at the time of any such ~~that,~~ request and (y) after giving effect ~~thereto, the aggregate amount of Incremental Commitments established at or prior~~ to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any ~~request for Incremental Term Loan Commitments, whether~~ such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) Loans, no ~~Default or Event of~~ Default shall have occurred and be continuing ~~immediately prior~~ and Parent shall be in compliance with each Financial Maintenance Covenant (calculated, in the case of clause (y), on a pro forma basis to ~~or immediately after giving~~ give effect to ~~such~~ any borrowing of Incremental ~~Commitments~~Term Loans). The Incremental Term Loans shall (i) rank pari passu in right of payment and of security with the other Loans, (ii) have an average weighted life equal to or longer than the ~~Total Leverage Ratio, determined~~ Term Loans and mature on a ~~Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting~~ date no earlier than the ~~proceeds of any Incremental Loans), shall not exceed 2.75:1.00~~Term Maturity Date, (iii) have such pricing as may be agreed upon by Borrower or PR Borrower, as the ~~representations~~ case may be, and ~~warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of~~ the ~~date~~ Persons providing such Incremental ~~Commitments become effective (or if such representation and warranty relates~~ Term Loans; provided, that the initial yield with respect to ~~another date, such other date) and (iv) the terms of such Incremental Commitments and~~ the Incremental Term Loans (as reasonably determined by Administrative Agent to be equal to the sum of (x) the LIBOR loan margins on the Incremental Term Loans and (y) if the Incremental Term Loans are initially made at a discount or ~~Incremental Revolving Loans thereunder shall comply with Section 2.25(c).~~ the lenders making the same receive a fee from Parent, Borrower, PR Borrower or any other Subsidiary for doing so (~~c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ the amount of such discount or fee, expressed as a percentage of the Incremental Term ~~Loans shall be determined~~ Loans, being referred to herein as "OID"), the amount of OID divided by the ~~Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that~~ lesser of (~~i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii~~A) the average life to maturity of such Incremental Term Loans and (B) four) may be no more than 0.25% per annum greater than the Applicable Margin with respect to the LIBOR Term Loans at the time the Incremental Term Facility Amendment (as defined below) becomes effective pursuant to its terms (it being understood that the pricing of the Term Loans will be increased and/or additional fees will be paid to the Term Lenders to the extent necessary to satisfy such requirement), and (iv) otherwise be treated hereunder substantially the same as (and in any event no more favorably than) the Term Loans (including with respect to the voluntary and mandatory prepayment provisions); provided, that the terms and provisions applicable to the Incremental Term Loans may provide for financial or other covenants different or in addition to those applicable to the Term Loans only to the extent that such terms and provisions are applicable only during periods after the Term Maturity Date. Each Person's commitment to provide an Incremental Term Loan shall become a Commitment under this Agreement and the facility for the Incremental Term Loans shall be ~~no shorter than~~ implemented hereunder pursuant to an amendment to this Agreement (an "Incremental Term Facility Amendment") executed by each of Parent, Borrower, PR Borrower, each other Obligor, each Lender agreeing to provide an Incremental Term Commitment and Administrative Agent, which Incremental Term Facility Amendment will not require the ~~remaining average life to maturity~~ consent of any ~~then-outstanding Class~~ other Lender. The effectiveness of ~~Term Loans, (iii) the~~ any Incremental Term ~~Loans will rank pari passu with~~ Facility Amendment shall (in addition to any other conditions specified therein) be subject to the satisfaction (or ~~junior to)~~ waiver by the ~~Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the~~ applicable Incremental Term ~~Loans shall be~~ Loan Lenders) on the ~~same as~~ date thereof and, if different, on the ~~Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield~~ date on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of which the Incremental Term Loans are ~~inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above)~~made, such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each ~~Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery~~ of ~~opinions of counsel and other documentation consistent with~~ the conditions set forth in Section ~~4.02, all~~ 7.01 and any other conditions to ~~the extent~~ effectiveness reasonably requested by Administrative Agent. (ii) Borrower or PR Borrower may, by written notice to Administrative Agent, request that the total Tranche A Revolving Credit Commitments be increased by an aggregate amount not to exceed the Additional Secured Indebtedness Amount at such time. Upon the receipt of such request by Administrative ~~Agent or the other parties to such Incremental Assumption Agreement. The~~ Agent, Administrative Agent shall ~~promptly notify~~ deliver a copy thereof to each ~~Lender as~~ Tranche A Revolving Credit Lender. Such notice shall set forth the amount of the requested increase and the date on which such increase is requested to become effective, which must be on or prior to the ~~effectiveness~~ Revolving Credit Maturity Date, and shall offer each Tranche A Revolving Credit Lender the opportunity to increase its Tranche A Revolving Credit Commitment by its applicable pro rata percentage of the proposed increased amount. Each Tranche A Revolving Credit Lender shall, by notice to Borrower or PR Borrower, as the case may be, and Administrative Agent given not more than 10 days after the date of Administrative Agent's notice, either agree to increase its Tranche A Revolving Credit Commitment (any such increase being an "Incremental Revolving Commitment") by all or a portion of the offered amount (each ~~Incremental Assumption Agreement~~Tranche A Revolving Credit Lender so agreeing being an "Increasing Revolving Lender") or decline to increase its Tranche A Revolving Credit Commitment (and any Tranche A Revolving Credit Lender that does not deliver such a notice within such period of 10 days shall be deemed to have declined to increase its Tranche A Revolving Credit Commitment) (each Tranche A Revolving Credit Lender so declining or being deemed to have declined being a "Non-Increasing Revolving Lender"). In the event that, on the 10th day after Administrative Agent shall have delivered a notice pursuant to the second sentence of this paragraph, the Increasing Revolving Lenders shall have agreed pursuant to the preceding sentence to increase their Tranche A Revolving Credit Commitments by an aggregate amount less than the increase requested by Borrower or PR Borrower, Borrower or PR Borrower may arrange for one or more banks or other entities (any such bank or other entity being called an "Augmenting Revolving Lender"), which may include any Lender, to extend Tranche A Revolving Credit Commitments or increase their existing Tranche A Revolving Credit Commitments in an aggregate amount equal to the unsubscribed amount; provided, however, that each Augmenting Revolving Lender shall be subject to the prior written approval of Administrative Agent, the Swing Lender and the Issuing Lender (which approvals shall not be unreasonably withheld or delayed), and Borrower or PR Borrower, as the case may be. Any increases in Tranche A Revolving Credit Commitments shall be implemented hereunder pursuant to an amendment to this Agreement (an "Incremental ~~Assumption Agreement may~~Revolving Amendment") executed by each of Parent, ~~without~~ Borrower, PR Borrower, each other Obligor, each Increasing Revolving Lender (if any), each Augmenting Revolving Lender (if any) and Administrative Agent, which amendment will not require the consent of any other Lender. Any such increase may be made in an amount that is less than the increase requested by Borrower or PR Borrower, ~~effect such amendments~~ as the case may be, if Borrower or PR Borrower is unable to ~~this Agreement~~ arrange for, or chooses not to arrange for, Augmenting Revolving Lenders. Each of the parties hereto hereby agrees that Administrative Agent may take any and ~~the other Loan Documents~~ all actions as may be ~~necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments~~ reasonably necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such ensure that, after giving effect to ~~each such deemed assignment and assumption of participations~~any increase pursuant to this Section 2.01(d)(ii), the ~~percentage of the aggregate~~ outstanding ~~participations hereunder in Letters of~~ Tranche A Revolving Credit Loans (if any) are held by ~~each~~ the Tranche A Revolving Credit ~~Lender (including each such Incremental~~ Lenders in accordance with their new applicable pro rata percentages. This shall be accomplished at the discretion of Administrative Agent, following consultation with the Borrower or PR Borrower, as the case may be by requiring the outstanding Tranche A Revolving Credit ~~Lender) will equal its~~ Loans to be prepaid with the proceeds of a new Tranche A Revolving Credit ~~Percentage~~Loan. IfAny prepayment or assignment described in the preceding sentence shall be subject to Section 5.05, but shall otherwise be without premium or penalty. Notwithstanding the foregoing, no increase in the Tranche A Revolving Credit Commitments (or separate commitment) shall become effective under this Section 2.01(d) unless, (i) on the date of such ~~increase~~increase (or provision of a separate commitment), ~~there are any Revolving Loans outstanding, such Revolving Loans~~ the conditions set forth in paragraph (i) of Section 7.01 shall ~~upon the effectiveness of such Incremental Revolving Credit Commitment~~ be ~~prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held~~ satisfied (or waived by the applicable Increasing Revolving ~~Credit~~ Lenders ~~according~~ and Augmenting Revolving Lenders) and Administrative Agent shall have received a certificate to ~~their Revolving Credit Percentages~~ that effect dated such date and executed by a Senior Officer, and (~~after giving effect to the increase in Revolving Credit Commitments)~~ii) if requested, ~~which prepayment~~ Administrative Agent shall ~~be accompanied by accrued interest~~ have received legal opinions and board resolutions consistent with those delivered on the ~~Revolving Loans being prepaid~~ Closing Date under Sections 7.02(a) and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence7.02(c)(ii)(B).

Appears in 1 contract

Sources: Credit Agreement (Centennial Communications Corp /De)

Incremental Facilities. (a) The Borrower ~~may~~may on one or more occasions, by written notice to the Administrative ~~Agent from time to time~~Agent, request the establishment of Incremental ~~Commitments in an amount such~~ Commitments; provided that, immediately after giving effect ~~thereto~~to the establishment of each Incremental Commitment and the incurrence of all Debt thereunder, the ~~aggregate amount of~~ Total Leverage Ratio computed on a pro forma basis shall not be greater than 2.50 to 1.00. Each such notice shall specify (i) the date on which the Borrower proposes that the Incremental Commitments ~~established at~~ shall be effective, which shall be a date not less than 10 Business Days (or ~~prior~~ such shorter period as may be agreed to by the Administrative Agent) after the date on which such ~~time does not exceed $100,000,000. Such~~ notice ~~shall set forth~~ is delivered to the Administrative Agent and (iii) the amount of the Incremental Commitments being requested (~~which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~it being agreed that (A) any Lender approached to provide any Incremental Commitment may elect or decline, (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion, to provide such Incremental Commitment and (B) or any ~~Additional~~ Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and otherwise satisfy the requirements of Section 12.04(b)(i)). (b) ~~It shall be a condition precedent to the effectiveness~~ The terms and conditions of any Incremental Commitments and the Incremental Loans to be made thereunder shall be, except as otherwise set forth herein, identical to those of the Commitments and the Loans; provided that (i) the Incremental Loans shall have the same Guarantees as, and shall rank pari passu in right of security with Liens on the same Collateral as, the Loans, (ii) if the Weighted Average Yield applicable to any Incremental Loans exceeds by more than 0.50% per annum the applicable Weighted Average Yield under the terms of this Agreement, as amended through the date of such calculation, with respect to Loans, then the Applicable Margin then in effect for Loans shall automatically be increased to the extent necessary to eliminate such excess, (iii) the Average Life of any Incremental Loans shall be no shorter than the remaining Average Life of the Loans, (iv) the Maturity Date for any Incremental Loan shall not be earlier than the Final Maturity Date in effect on the date such Incremental Loan is made, (v) for purposes of mandatory prepayments, the Incremental Loans shall be treated no more favorably than the Loans and (vi) the interest rate margins, original issue discount or upfront fees (if any) and interest rate floors (if any) applicable to any Incremental Commitment shall be determined by the Borrower and the lenders thereunder. Any Incremental Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any Incremental Loans made thereunder, shall be designated as a separate Class of Incremental Commitments and Incremental Loans for all purposes of this Agreement. (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) no Default or Event of Default shall have occurred and be continuing on the date of effectiveness thereof, both immediately prior to or and immediately after giving effect to such Incremental ~~Commitments~~Commitments and the making of Loans thereunder, (ii) on the ~~Total Leverage Ratio~~date of effectiveness thereof, ~~determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties of each Credit Party set forth in ~~Article III and in each other Loan Document~~ the Credit Documents shall be true and correct (A) in ~~all material respects (or in all respects, if~~ the case of the representations and warranties qualified as to materiality, in all respects and (B) otherwise, in all material respects, in each case on and as of such date, except in the ~~date such Incremental Commitments become effective (or if~~ case of any such representation and warranty that expressly relates to ~~another~~ a prior date, in which case such ~~other date)~~ representation and ~~(iv) the terms~~ warranty shall be so true and correct on and as of such ~~Incremental Commitments~~ prior date and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the ~~Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans~~ Borrower shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver have delivered to the Administrative Agent ~~an Incremental Assumption Agreement providing for~~ such ~~Incremental Commitments~~legal opinions, board resolutions, secretary’s certificates, officer’s certificates and ~~such~~ other ~~documentation~~ documents as ~~the Administrative Agent~~ shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably be requested by the Administrative Agent ~~or the other parties to~~ in connection with any such transaction. Each Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Facility Agreement may, without the consent of any Lender (other ~~Lender~~than the Incremental Lenders party thereto), effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this ~~Section 2.25~~Section. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, ~~including any amendments necessary~~ (i) such Incremental Lender shall be deemed to ~~establish the Incremental Term Loan~~ be a “Lender” (and a Lender in respect of Commitments and ~~Incremental Term~~ Loans ~~as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion~~ of the ~~Administrative Agent~~ applicable Class) hereunder, and henceforth shall be entitled to all the ~~Borrower~~ rights of, and benefits accruing to, a Lender (and a Lender in ~~connection with~~ respect of Commitments and Loans of the ~~establishment~~ applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of ~~such new Class or tranche,~~ a Lender (and a Lender in ~~each case on terms consistent with this Section 2.25~~respect of Commitments and Loans of the applicable Class) hereunder and under the other Credit Documents. (e) ~~Upon each increase~~ Subject to the terms and conditions set forth herein and in the ~~Revolving Credit Commitments pursuant to this Section ‎2.25~~applicable Incremental Facility Agreement, each ~~Revolving Credit~~ Lender ~~with~~ holding an Incremental Commitment of any Class shall make a ~~Revolving Credit Commitment immediately prior~~ loan to the Borrower in an amount equal to such ~~increase will automatically and without further act be deemed to have assigned to each~~ Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, Commitment on the date specified in such Incremental Facility Agreement. (f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of ~~such increase, there are~~ any ~~Revolving Loans outstanding, such Revolving Loans shall upon~~ notice from the Borrower referred to in Section 2.08(a) and of the effectiveness of ~~such~~ any Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase Commitments, in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and each case advising the Lenders ~~hereby agree that~~ of the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencedetails thereof.

Appears in 1 contract

Sources: Second Lien Credit Agreement (Callon Petroleum Co)

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request prior to the Tranche B Term Loan Maturity Date, ~~request~~ the establishment of one or more new term loan commitments (the “Incremental ~~Commitments in~~ Term Loan Commitments”), by an amount ~~such that, after giving effect thereto,~~ not in excess of the sum of (i) $100,000,000 in the aggregate minus the aggregate amount of Indebtedness incurred pursuant to Section 2.24(a)(i) (or any similar incremental “free and clear” basket) of the First Lien Credit Agreement and (ii) an unlimited amount so long as such amount at such time could be incurred without causing the pro forma Consolidated Senior Secured Leverage Ratio to exceed 5.00:1.00 (assuming that Incremental Term Loans are not netted from Indebtedness for purposes of calculating such Consolidated Senior Secured Leverage Ratio); provided that no such Incremental Term Loan Commitments ~~established at~~ shall be in an aggregate amount less than $25,000,000 (except as shall be approved by the Administrative Agent or such lesser amount that shall constitute the difference between $100,000,000 and all such Incremental Term Loan Commitments obtained prior to such ~~time does not exceed $100,000,000. Such notice shall set forth~~ date pursuant to clause (i) above), and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental ~~Commitments being requested (~~Term Loan Commitments, as applicable, shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative Agent ~~shall agree))~~and (B) the identity of each Lender or other Person that is an Eligible Assignee (each, ~~(iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or~~ an “Incremental Term Loan ~~Commitments and (iv~~Lender”) in to whom the ~~case~~ Borrower proposes any portion of ~~any request for~~ such Incremental Term Loan Commitments, ~~whether~~ as applicable, be allocated and the amounts of such allocations; provided that Barclays may elect or decline to arrange such Incremental Term Loan Commitments ~~are commitments~~ in its sole discretion and any Lender approached to ~~make additional~~ provide all or a portion of the Incremental Term ~~Loans of any then outstanding Class~~ Loan Commitments may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion~~) or any Additional Lender. (b) It~~ , to provide an Incremental Term Loan Commitment. Such Incremental Term Loan Commitments shall ~~be a condition precedent to the effectiveness~~ become effective as of ~~any Incremental Commitment~~ such Increased Amount Date; provided that (i1) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of any Incremental Term Loans, each of the conditions set forth in Section 3.02 shall be satisfied; (3) Holdings shall be in pro forma compliance (calculated in accordance with the definition of Consolidated Adjusted EBITDA) with each of the covenants set forth in Section 6.07 as of the last day of the most recently ended Fiscal Quarter, after giving effect to such Incremental Term Loan Commitments, including any acquisitions consummated with the proceeds thereof or dispositions after the beginning of the relevant determination period but prior to or simultaneous with the borrowing of such Incremental Term Loan Commitments; (4) the Incremental Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Incremental Term Loan Lender, and the Administrative Agent, and each of which shall be recorded in the Register and each Incremental Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) the Borrower shall make any payments required pursuant to Section 2.18(c) in connection with the Incremental Term Loan Commitments; (6) all other fees and expenses owing in respect of such increase to the Administrative Agent, the Collateral Agent and the Lenders will have been paid; (7) such Incremental Term Loan Commitments shall share pari passu in the Guarantees and Collateral; and (8) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Administrative Agent in connection with any such transaction. Any Incremental Term Loans made on an Increased Amount Date may be designated a separate series (a “Series”) of Incremental Term Loans or, if applicable, may constitute additional Term Loans of the Same Series as any then-existing Term Loans for all purposes of this Agreement. (b) [Reserved] (c) On any Increased Amount Date on which any Incremental Term Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan Lender of any Series shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Series and (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all~~ each Incremental ~~Commitments have been fully funded and without netting the proceeds~~ Term Loan Lender of any Series shall become a Lender hereunder with respect to the Incremental ~~Loans),~~ Term Loan Commitment of such Series and the Incremental Term Loans of such Series made pursuant thereto. (d) The Administrative Agent shall ~~not exceed 2.75:1.00, (iii)~~ notify the ~~representations and warranties set forth in Article III~~ Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in ~~each other~~ respect thereof the Series of Incremental Term Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term ~~Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c)~~Loan Lenders of such Series. (ce) ~~Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement.~~ The terms and provisions of the Incremental Term Loans and Incremental Term Loan Commitments of any Series shall ~~be determined by~~ be, except as otherwise set forth herein or as agreed between the Borrower and the Lenders providing such Incremental Term ~~Lenders~~ Loans and as set forth in the ~~applicable Incremental Assumption~~ Joinder Agreement~~; provided that~~ , identical to the existing Term Loans. In any event (i) the ~~final maturity date~~ Weighted Average Life to Maturity of ~~any~~ all Incremental Term Loans ~~shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity~~ of ~~the Incremental Term Loans~~ any Series shall be no shorter than the ~~remaining average life~~ Weighted Average Life to Maturity of the existing Term Loans (except by virtue of amortization or prepayment of such existing Term Loans prior to such date of determination), (ii) the applicable Incremental Term Loan Maturity Date of each Series shall be no shorter than the latest of the final maturity of ~~any then-outstanding Class of~~ the existing Term Loans, and (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the ~~All-in Yield on such Incremental Term Loans~~ “yield” of any relevant Loan exceeds the ~~initial All-in Yield of~~ “yield” on the ~~Tranche B~~ existing Term Loans by more than 50 basis ~~points (~~points, the ~~amount of~~ applicable margins for the existing Term Loans shall be increased to the extent necessary so that the “yield” on such ~~excess above~~ Term Loans is 50 basis points ~~being referred to herein as~~ less than the “~~Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of~~ yield” on such relevant Incremental Term Loans (for purposes of this paragraph “yield” shall be reasonably determined by the Administrative Agent (w) to include the applicable interest rate margin, (x) to exclude arrangement, commitment, structuring or other fees payable to the Joint Lead Arrangers (or their respective Affiliates) in connection with such Loans or to one or more arrangers (or their Affiliates) of any such Loan that are not shared with all Lenders providing such Loans, (y) to include original issue discount and upfront fees paid to the Lenders thereunder (with original issue discount being equated to interest based on assumed four-year life to maturity or, if shorter, the actual Weighted Average Life to Maturity), and (vz) to ~~the extent the terms of~~ include, if the Incremental Term Loans ~~are inconsistent with~~ include an interest rate floor greater than the ~~terms set forth herein (except as set forth in clause (i) through (iv) above)~~applicable interest rate floor under the existing Term Loans, such ~~terms shall be reasonably satisfactory~~ differential between interest rate floors equated to the ~~Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as~~ applicable interest rate margin for purposes of determining whether an increase to the ~~Total Revolving Credit Commitments and~~ interest rate margin under the existing Term Loans shall be ~~on terms identical~~ required, but only to the extent an increase in the interest rate floor in the existing Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the existing ~~Revolving Credit Commitments (and the Revolving~~ Term Loans ~~thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender~~ shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all be increased to the extent ~~reasonably requested by the Administrative Agent or the other parties to~~ of such ~~Incremental Assumption Agreement~~differential between interest rate floors). ~~The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative Agent ~~and the Borrower,~~ to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.24. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

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

Incremental Facilities. (a) The Borrower ~~may~~may on one or more occasions after the Funding Date, by written notice to the Administrative ~~Agent from time to time~~Agent, request the establishment of Incremental ~~Commitments in an amount such that~~Term Commitments, ~~after giving effect thereto,~~ provided that the aggregate amount of all the Incremental Term Commitments established ~~at or prior to such time does~~ hereunder shall not exceed $~~100,000,000~~250,000,000 during the term of this Agreement. ~~Such~~ Each such notice shall ~~set forth~~ specify (iA) the date on which the Borrower proposes that the Incremental Term Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent, and (B) the amount of the Incremental Term Commitments being requested (~~which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000),~~ it being agreed that (iix) ~~the date on which such Incremental Commitments are requested~~ any Lender approached to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or provide any Incremental Term ~~Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments~~Commitment may elect or decline, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion, to provide such Incremental Term Commitment and (y) or any ~~Additional~~ Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be approved by the Borrower and the Administrative Agent (such approvals not to be unreasonably withheld)). (b) ~~It shall be a condition precedent to the effectiveness~~ The terms and conditions of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Term Commitments and the Incremental Term Loans ~~or Incremental Revolving Loans~~ to be made thereunder shall ~~comply~~ be, except with ~~Section 2.25(c). (c) Incremental Commitments shall be established pursuant~~ respect to ~~an amendment (an “Incremental Assumption Agreement”) relating~~ pricing, upfront, closing or similar fees or original issue discount, amortization and maturity, substantially identical to ~~this Agreement. The terms~~ those of the ~~Incremental~~ Commitments in respect of the Initial Term ~~Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement~~Loans; provided that (i) the ~~final maturity date of any~~ Incremental Term Loans and the Initial Term Loans shall ~~be no earlier than the Latest Maturity Date~~rank pari passu in right of payment, (ii) the weighted average life to maturity of ~~the~~ any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of ~~any then-outstanding Class of Term Loans, (iii)~~ the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Initial Term Loans and (viii) no Incremental Term Loan Maturity Date shall be earlier than the Initial Term Loan Maturity Date. Any Incremental Term Commitments established pursuant to ~~the extent the~~ an Incremental Facility Agreement that have identical terms ~~of the~~ and conditions, and any Incremental Term Loans ~~are inconsistent with~~ made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term Commitments and Incremental Term Loans for all purposes of this Agreement. (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by the ~~terms set forth herein (~~Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that, except as set forth in ~~clause~~ the penultimate sentence of this paragraph (c), no Incremental Commitments shall become effective unless (i) ~~through~~ on the date of effectiveness thereof, both immediately prior to and immediately after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), the Borrower shall be in compliance with the condition set forth in Section 4.02(b) (and assuming, for such purposes, that a Borrowing is made on such date of effectiveness), (ii) on the date of effectiveness thereof, the Borrower shall be in compliance with the condition set forth in Section 4.02(a) (and assuming, for such purposes, that a Borrowing is made on such date of effectiveness), (iii) after giving effect to such Incremental Commitments (and assuming that the full amount of such Incremental Commitments shall have been funded as Loans on such date), and any related transaction, on a pro forma basis, the Borrower shall be in compliance with the covenant set forth in Section 6.01 calculated as of the last day of the fiscal quarter of the Borrower then most recently ended for which the financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, the most recent period of four consecutive fiscal quarters included in the financial statements referred to in Section 3.04(a)), (iv) ~~above),~~ the Borrower shall have paid all fees and expenses required to be made to any arranger or lender in connection with such ~~terms shall be reasonably satisfactory to the Administrative Agent. Any~~ Incremental ~~Revolving Credit Commitment (~~Commitments and the ~~Incremental Revolving Loans thereunder~~related transactions under this Section and (v) the Borrower shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver have delivered to the Administrative Agent ~~an Incremental Assumption Agreement providing for~~ such ~~Incremental Commitments~~legal opinions, board resolutions, secretary’s certificates, officer’s certificates and ~~such~~ other ~~documentation~~ documents as ~~the Administrative Agent~~ shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably be requested by the Administrative Agent ~~or the other parties to~~ in connection with any such transaction. Each Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to give effect to the provisions of this ~~Section 2.25~~Section. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, ~~including any amendments necessary~~ such Incremental Lender shall be deemed to ~~establish the Incremental Term Loan~~ be a “Lender” (and a Lender in respect of Commitments and ~~Incremental Term~~ Loans ~~as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion~~ of the ~~Administrative Agent~~ applicable Class) hereunder, and henceforth shall be entitled to all the ~~Borrower~~ rights of, and benefits accruing to, Lenders (or Lenders in ~~connection with~~ respect of Commitments and Loans of the ~~establishment~~ applicable Class) hereunder and shall be bound by all agreements, acknowledgements and other obligations of ~~such new Class~~ Lenders (or ~~tranche,~~ Lenders in ~~each case on terms consistent with this Section 2.25~~respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents. (e) ~~Upon each increase~~ Subject to the terms and conditions set forth herein and in the ~~Revolving Credit Commitments pursuant to this Section ‎2.25~~applicable Incremental Facility Agreement, each ~~Revolving Credit~~ Lender ~~with~~ holding an Incremental Term Commitment of any Series shall make a ~~Revolving Credit Commitment immediately prior~~ loan to the Borrower in an amount equal to such ~~increase will automatically and without further act be deemed to have assigned to each~~ Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, Term Commitment on the date specified in such Incremental Facility Agreement. (f) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of ~~such increase, there are~~ any ~~Revolving Loans outstanding, such Revolving Loans shall upon~~ notice from the Borrower referred to in Section 2.22(a) and of the effectiveness of ~~such~~ any Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase Commitments, in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and each case advising the Lenders ~~hereby agree that~~ of the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencedetails thereof.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Newmont Mining Corp /De/)

Incremental Facilities. ~~(a)~~ The Borrower ~~may~~may at any time and from time to time prior to June 30, 2009, by ~~written~~ notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as whereupon the Administrative Agent shall ~~agree)~~promptly deliver a copy to each of the Lenders), request the addition of (~~iii~~collectively, the "Incremental Facilities") ~~whether such~~ a new tranche of term loans (an "Incremental Term Facility") or an increase in the Revolving Commitments ~~are~~ ("Incremental Revolving ~~Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan~~ Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion") or ~~any Additional Lender. (b) It shall be~~ a ~~condition precedent to the effectiveness of any Incremental Commitment~~ combination thereof; provided that (i) at the time of any such request and upon the effectiveness of the Incremental Facility Amendment referred to below, no Default or Event of Default shall ~~have occurred~~ exist, (ii) the Borrower shall be in compliance with Sections 6.13, 6.14 and ~~be continuing immediately prior to or immediately~~ 6.16 determined on a pro forma basis both before and after giving effect to such Incremental ~~Commitments,~~ Facility (~~ii)~~ as if such Incremental Facility had been outstanding on the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting~~ last day of the ~~proceeds of any Incremental Loans~~most recent fiscal quarter for testing compliance therewith), ~~shall not exceed 2.75:1.00,~~ and (iii) all fees and expenses owing to the ~~representations~~ Administrative Agent and ~~warranties set forth~~ the Lenders in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms respect of such Incremental ~~Commitments~~ Facility shall have been paid (provided that the Administrative Agent will consult with the Borrower before agreeing to any commitment or upfront fees with the banks or other financial institutions providing such Incremental Facility). The Incremental Facilities shall be in an aggregate principal amount not exceeding (in the aggregate) $200,000,000, each Incremental Term Facility shall be in an aggregate principal amount not less than $50,000,000, and each of the Incremental ~~Term Loans or Incremental~~ Revolving ~~Loans thereunder shall comply with Section 2.25(c). (c) Incremental~~ Commitments shall be ~~established pursuant to~~ in an ~~amendment~~ aggregate principal amount not less than $10,000,000. Each Incremental Facility (~~an “Incremental Assumption Agreement”~~a) ~~relating to this Agreement. The terms of the Incremental Term Loans~~ shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu ~~with (or junior to) the Tranche B Term Loans~~ in right of payment and of security with ~~respect to security~~ the Revolving Loans and ~~the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to~~ the Term Loans, (ivb) if in the ~~All-in Yield on such~~ case of an Incremental Term ~~Loans exceeds~~ Facility, shall not mature earlier than the ~~initial All-~~Term Loan Maturity Date (but may, subject to clause (c) below, have amortization and commitment reductions prior to such date), (c) in ~~Yield~~ the case of an Incremental Term Facility, shall have a weighted average life that is not less than that of the ~~Tranche B~~ Term ~~Loans by more than 50 basis points~~ Loans, and (d) in the ~~amount~~ case of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such an Incremental Term ~~Loans~~ Facility, for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans; provided that (x) the terms and conditions applicable to any Incremental Facility maturing after the Term Loan Maturity Date may provide for material additional or different financial or other covenants applicable only during periods after the Term Loan Maturity Date, and (vy) to the ~~extent~~ Incremental Term Facility may be priced differently than the Term Loans. Any such notice shall set forth the requested amount and terms of the relevant Incremental ~~Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above)~~Facility. The Borrower may arrange for one or more banks or other financial institutions, ~~such terms~~ each of which shall be reasonably satisfactory to the Administrative ~~Agent. Any~~ Agent and the Borrower and, with respect only to Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Issuing Bank (any such bank or other financial institution being called an "Additional Lender"), to extend commitments under the Incremental Facility, and each existing Lender shall be afforded an opportunity, but shall not be required, to provide a portion of any such Incremental Facility. Commitments in respect of Incremental Facilities shall become Commitments under this Agreement, and each Additional Lender shall become a Lender under this Agreement, pursuant to an amendment (an "Incremental Facility Amendment") to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative ~~Agent and each applicable~~ Agent. An Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Facility Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents ~~as may be~~ to the extent (but only to the extent) necessary ~~or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower,~~ to effect the provisions of this ~~Section 2.25, including~~ Section. The effectiveness of any ~~amendments necessary~~ Incremental Facility Amendment shall be subject to ~~establish~~ the ~~Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche~~ satisfaction on the date thereof of ~~Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion~~ each of the ~~Administrative Agent and the Borrower~~ conditions set forth in ~~connection with the establishment of such new Class or tranche, in each case on terms consistent with this~~ Section ~~2.25.~~ 4.02 (~~e) Upon each increase in the Revolving Credit Commitments pursuant~~ it being understood that all references to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on "the date of such ~~increase, there are any Revolving Loans outstanding,~~ Borrowing" in such ~~Revolving Loans~~ Section 4.02 shall ~~upon~~ be deemed to refer to the ~~effectiveness~~ effective date of such Incremental ~~Revolving Credit Commitment be prepaid from the~~ Facility Amendment). The proceeds of ~~additional Revolving Loans made hereunder so that~~ the ~~Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments)~~Incremental Facilities will be used for working capital and other general corporate purposes, which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceincluding consideration for Permitted Acquisitions.

Appears in 1 contract

Sources: Credit Agreement (Cumulus Media Inc)

Incremental Facilities. (a) The Borrower may, by written notice to the Administrative ~~Agent from time to time~~Agent, request Incremental Term Loan Commitments in an ~~amount such that, after giving effect thereto, the~~ aggregate amount not to exceed the Maximum Facility Amount at such time, from one or more Incremental Term Lenders (which may include any existing Lender willing to provide the same, in their own discretion); provided that each such Person, if not already a Lender hereunder, shall be subject to the approval of ~~Incremental Commitments established at or prior to such time does not exceed $100,000,000~~the Administrative Agent (acting reasonably). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $~~500,000~~ 1,000,000 and a minimum amount of $~~5,000,000~~10,000,000 or equal to the remaining Maximum Facility Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such ~~notice (or such longer or shorter period as~~ notice, unless otherwise agreed to by the Administrative ~~Agent shall agree)),~~ Agent) and (iii) ~~whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments,~~ whether such Incremental Term Loan Commitments are ~~commitments~~ to ~~make additional~~ be Term ~~Loans of any then outstanding Class~~ A-1 Loan Commitments, Term A-2 Loan Commitments or ~~commitments to make~~ Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional LenderA-3 Loan Commitments. (b) ~~It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred~~ The Borrower and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption ~~Agreement providing for such Incremental Commitments,~~ Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the ~~Incremental~~ Commitment of ~~each Incremental~~ such Lender. ~~Any~~ Each Incremental Assumption ~~Agreement may include conditions for delivery~~ Amendment in respect of ~~opinions~~ Incremental Term Loan Commitments shall specify the terms of ~~counsel~~ the Incremental Term Loans to be made thereunder. (c) The scheduled amortization and ~~other documentation consistent~~ maturity of any Incremental Term Loans shall be as set forth in the applicable Incremental Assumption Amendment (including any technical changes to the applicable Term Loans that are necessary to make any such Incremental Term Loans fungible with the outstanding Term A-1 Loans, Term A-2 Loans or Term A-3 Loans, as applicable). (d) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.21 unless (i) the conditions set forth in Section ~~4.02, all to the extent reasonably requested by~~ 4.2 are satisfied and (ii) the Administrative 39 Agent or shall have received certified copies of authorizing resolutions of the ~~other parties to~~ Board of Directors of the Borrower authorizing such Incremental ~~Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement.~~ Term Loan Commitments. (e) Any Incremental Assumption ~~Agreement~~ Amendment may, without the consent of any other ~~Lender~~Lenders and notwithstanding anything in Section 9.01 to the contrary, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.21. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Micron Technology Inc)

Incremental Facilities. ~~(a) The Borrower may~~Subject to the terms and conditions set forth herein, by Adtalem shall have the right, from time to time and upon at least ten Business Days’ prior written notice to the Administrative Agent ~~from time~~ (an “Incremental Request”), to ~~time~~request to incur additional term loans under a then existing tranche and/or add one or more additional tranches of term loans (“Other Term Loans” and, ~~request~~ together with any additional term loans under a then existing tranche incurred pursuant to this Section 2.14, the “Incremental Term Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) and/or increase the Aggregate Revolving Commitments (the “Incremental Revolving Commitments”; and revolving loans made thereunder the “Incremental Revolving Loans”); the Incremental Revolving Loans, together with the Incremental Term Loans are referred to herein as the “ Incremental Facility Loans”) subject, however, in ~~an amount~~ any such ~~that~~case, ~~after giving effect thereto,~~ to satisfaction of the following conditions precedent: (a) the aggregate amount of all Incremental Revolving Commitments ~~established at or prior~~ and Incremental Term Loans effected pursuant to ~~such time does~~ this Section 2.16 shall not exceed $~~100,000,000. Such notice shall set forth~~ 250,000,000; (ib) subject to Section 1.11 in the case of an Incremental Term Facility used to finance a Limited Condition Acquisition, on the date on which any Incremental Facility Amendment is to become effective, both immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility Loans (assuming that the full amount of the Incremental ~~Commitments being requested (which~~ Facility Loans shall ~~be in minimum increments of $500,000~~ have been funded on such date) and ~~a minimum amount of $5,000,000)~~any related transactions, (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no ~~Default or Event of~~ Default shall have occurred and be ~~continuing immediately prior~~ continuing; (c) subject to ~~or immediately~~ Section 1.11 in the case of an Incremental Term Facility used to finance a Limited Condition Acquisition, after giving effect to the incurrence of such Incremental ~~Commitments~~Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and any related transactions, ~~(ii) the Total Leverage Ratio, determined~~ on a Pro Forma ~~Basis~~ Basis, the Consolidated Leverage Ratio for the most recently completed four fiscal quarter period shall be less than or equal to the maximum then permitted under Section 7.15; (~~assuming that all~~ d) subject to Section 1.11 in the case of an Incremental ~~Commitments have been fully funded and without netting the proceeds of any Incremental Loans)~~Term Facility used to finance a Limited Condition Acquisition, ~~shall not exceed 2.75:1.00, (iii)~~ the representations and warranties set forth in Article ~~III and in each other Loan Document~~ V shall be true and correct ~~in all material respects (or in all respects, if qualified as to materiality)~~ on and as of the date on which such Incremental ~~Commitments~~ Facility Amendment is to become ~~effective~~ effective, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date; (e) such Incremental Facility Loans shall be in a minimum amount of $25,000,000 (or, if less, the balance of the remaining aggregate principal amount available for all such Incremental Facility Loans) and in integral multiples of $1,000,000 in excess thereof (or if such ~~representation and warranty relates to another date, such other date~~lesser amounts as agreed by the Administrative Agent); (f) ~~and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or~~ any Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c). (c) Incremental~~ Commitments shall be ~~established pursuant~~ made on the same terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.1(a); (g) any Incremental Term Loan that constitutes an ~~amendment~~ additional term loan under a then existing tranche of term loans shall be made on the same terms and provisions (other than upfront fees) as apply to such outstanding term loan, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loan; provided that in the case of an Incremental Term Loan that is an additional advance of any existing tranche of term loans that is subject to a prepayment premium, the expiration date of such prepayment premium as to the full principal amount of such term loan may be extended to a date agreed by Adtalem and the Lenders providing such Incremental Term Loan; (h) in the case of any Other Term Loan that the Administrative Agent has determined is a term loan A (an “Incremental ~~Assumption Agreement~~Tranche A Term Loan”), such Other Term Loan shall: (A) ~~relating to this Agreement. The~~ rank pari passu in right of payment priority with the existing term loans, (B) share ratably in rights in the Collateral, the U.S Guaranty and the Offshore Guaranty, as applicable and in a manner consistent with the terms of the Loan Documents, (C) have a maturity date that is not earlier than the later of (1) the Maturity Date with respect to Revolving Loans and (2) the final maturity of any other Incremental Tranche A Term ~~Loans~~ Loan, (D) have a Weighted Average Life to Maturity that is not shorter than the then-remaining Weighted Average Life to Maturity of any other Incremental Tranche A Term Loan (it being understood that, subject to the foregoing, the amortization schedule applicable to such Other Term Loan shall be determined by ~~the Borrower~~ Adtalem and the Lenders of such Other Term Loan), (E) share ratably in any mandatory prepayments of the Term B Loan and any other Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life Facilities pursuant to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with Section 2.5 (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by otherwise provide for more ~~than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin~~ favorable prepayment treatment for the ~~Tranche~~ then outstanding Term B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (eFacilities) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.and

Appears in 1 contract

Sources: Credit Agreement (Adtalem Global Education Inc.)

Incremental Facilities. (a) The Lead Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Commitments in an amount such that, after giving effect thereto, the ~~aggregate amount of~~ Aggregate Incremental ~~Commitments established at or prior to such time~~ Amount does not exceed ~~$100,000,000~~the Incremental Cap. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $~~500,000~~ 1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such ~~longer or~~ shorter ~~period~~ periods as the Administrative Agent shall agree)), ) and (iii) whether such Incremental Commitments are Incremental Revolving ~~Credit~~ Commitments or Incremental Term ~~Loan Commitments and (iv) in the case of any request for Incremental Term Loan~~ Commitments~~, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class~~. The Lead Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment and the incurrence of any Incremental Term Loans that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental ~~Commitments~~Commitment or the incurrence of such the Incremental Term Loans, as applicable, (ii) the ~~Total Leverage Ratio~~Parent is in compliance with the Financial Covenants, determined as of the fiscal quarter of the Parent most recently ended for which financial statements have been delivered pursuant to Section 7.01 and on a an Incremental Pro Forma ~~Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00~~Basis, (iii) the representations and warranties set forth in Article ~~III~~ 6 and in each other ~~Loan~~ Credit Document shall be true and correct in all material respects ~~(or in all respects, if qualified as to materiality)~~ on and as of the date such Incremental Commitments become effective ~~(or if such representation~~ and ~~warranty relates to another date, such other date)~~ the Incremental Term Loans are made and (iv) the terms of such Incremental Commitments and ~~the~~ such Incremental ~~Term~~ Loans ~~or Incremental Revolving Loans thereunder~~ shall comply with Section ~~2.25(c~~2.18(c). (c) Each Incremental ~~Commitments~~ Revolving Commitment (and the Incremental Revolving Loans thereunder) shall be ~~established pursuant~~ implemented as an increase to ~~an amendment~~ the Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (~~an “Incremental Assumption Agreement”) relating to this Agreement~~and the Revolving Credit Loans thereunder). The terms of the Incremental Term Loans shall be determined by the Lead Borrower and the Incremental Term Lenders and set forth in ~~the applicable Incremental Assumption Agreement~~an Additional Credit Extension Amendment; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the ~~Latest~~ Maturity ~~Date~~Date with respect to the Term B Facility, (ii) the weighted average life to maturity of the Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of ~~any then-outstanding Class of~~ the Term B Loans, (iii) the Incremental Term Loans will rank pari passu ~~with (or junior to) the Tranche B Term Loans~~ in right of payment and with respect to security with the Term Loans and the ~~borrower~~ Revolving Credit Loans and ~~guarantors~~ none of the ~~Incremental Term Loans~~ obligors or guarantors with respect thereto shall be ~~the same as the Borrower and Guarantors with respect to the Term Loans~~a Person that is not a Credit Party, (iv) if the All-in Yield on for such Incremental Term Loans exceeds the initial All-in Yield of for the ~~Tranche~~ Term B ~~Term~~ Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ~~Margin~~ Percentage for the ~~Tranche~~ Term B ~~Term~~ Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the ~~Borrower~~Borrowers, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an ~~Incremental Assumption Agreement providing for such Incremental Commitments,~~ Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each ~~Incremental Assumption Agreement~~Additional Credit Extension Amendment. Any ~~Incremental Assumption Agreement~~ Additional Credit Extension Amendment may, without consent of any other Lender, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Lead Borrower, to effect the provisions of this Section ~~2.25~~2.18, including any amendments necessary to establish the Incremental Term ~~Loan Commitments and~~ Loans and/or Incremental Term ~~Loans~~ Commitments as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Lead Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section ~~2.25. (e)~~ 2.18. Upon each increase in the Revolving Credit Commitments pursuant to this Section ~~‎2.25~~2.18, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving ~~Credit~~ Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit and Swingline Loans held by each Revolving Credit Lender (including each such Incremental Revolving ~~Credit~~ Lender) will equal its ~~Revolving Credit~~ Aggregate Commitment Percentage. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall upon the effectiveness of such Incremental Revolving ~~Credit~~ Commitment be prepaid from the proceeds of ~~additional~~ the Incremental Revolving Credit Loans made hereunder so that ~~the~~ Revolving Credit Loans are thereafter held by the Revolving Credit Lenders according to their ~~Revolving Credit Percentages~~ Aggregate Commitment Percentage (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section ~~2.16~~3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (Tempur Pedic International Inc)

Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments or Incremental Revolving Credit Commitments, as applicable, in an amount (the “Incremental Facility Amount”) not to exceed the greater of (i) (x) $50,000,000 minus (y) the aggregate amount of all Incremental Commitments established prior to such ~~that~~time and (ii) such other amount so long as, in the case of this clause (ii), the Secured Leverage Ratio would not, after giving effect ~~thereto~~to the making of any Loans to be made on the date of effectiveness thereof (in each case assuming all Incremental Revolving Credit Commitments are drawn on such effective date) and other pro forma adjustments in accordance with Section 1.03, exceed 2.50:1.00 as of the ~~aggregate amount~~ date of ~~Incremental Commitments established at or prior to~~ such ~~time does not exceed $100,000,000~~effectiveness. Such notice shall set forth (i1) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $~~500,000~~ 1,000,000 and a minimum amount of $~~5,000,000~~5,000,000 or such lesser amount equal to the remaining Incremental Facility Amount), (ii2) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice ~~(or such longer or shorter period as~~ unless waived by the Administrative Agent ~~shall agree)), (iii~~in its sole discretion) ~~whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments~~ and (iv3) in the case of ~~any request for~~ Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans ~~of any then outstanding Class~~ or commitments to make term loans with terms different from the Term Loans ~~of a new Class.~~ (“Other Term Loans”). (b) The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or and additional banks, financial institutions and other institutional lenders that will become Incremental Term Lenders and/or Incremental Revolving Lenders, as applicable, in connection therewith; provided that any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term ~~Loans~~ Lender or Incremental Revolving ~~Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall~~ Lender must be ~~established pursuant to~~ an ~~amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental~~ existing Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity DateLender or existing Revolving Credit Lender, ~~(ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans~~respectively, ~~(iii) the Incremental Term Loans will rank pari passu with (~~or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably ~~satisfactory~~ acceptable to the Administrative Agent. ~~Any~~ The Borrower and each Incremental Term Lender and/or Incremental Revolving ~~Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented~~ Lender, as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitmentsapplicable, ~~the Borrower, the Administrative Agent and each applicable Incremental Lender~~ shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement ~~providing for such Incremental Commitments,~~ and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of ~~each~~ such person. The terms and provisions of the Incremental ~~Lender. Any Incremental Assumption Agreement may include conditions for delivery~~ Term Loans shall be identical to those of ~~opinions of counsel and other documentation consistent with~~ the ~~conditions~~ Term Loans except as otherwise set forth herein or in ~~Section 4.02, all to~~ the ~~extent reasonably requested by the Administrative Agent or the other parties to such~~ Incremental Assumption Agreement~~. The Administrative Agent shall promptly notify each Lender as~~ , it being understood that the Incremental Term Lenders may (i) agree to yield protection terms similar to clause (c) below that are less favorable (but not more favorable) than the terms applicable to the ~~effectiveness~~ other Classes of ~~each Incremental Assumption Agreement. Any Incremental Assumption Agreement may~~Term Loans, ~~without consent~~ (ii) agree to participate on a less than (but not greater than) pro rata basis in respect of any ~~other Lender, effect such amendments to~~ prepayments or repayments of Term Loans under this Agreement and (iii) agree to different initial Interest Periods with respect to the applicable Incremental Term Loans. The terms and provisions of the Incremental Revolving Credit Commitments shall be identical to those of the Revolving Credit Commitments. The Loans made pursuant to any Incremental Commitment shall rank pari passu in right of payment and security with the other Loans made hereunder. Without the prior written consent of a Majority in Interest of each affected Class, (a) the final maturity date of any Other Term Loans shall be no earlier than the latest Term Loan ~~Documents as may be necessary~~ Maturity Date or ~~appropriate,~~ Incremental Term Loan Maturity Date (if any) in effect at the ~~reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish~~ time the Incremental Term Loan Commitments ~~and Incremental~~ with respect to such Other Term Loans ~~as a new Class or tranche~~ become effective, (b) the weighted average life to maturity of the Other Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be ~~accompanied by accrued interest on~~ no shorter than the ~~Revolving Loans being prepaid and~~ remaining weighted average life to maturity of any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.other Class of Term

Appears in 1 contract

Sources: Credit Agreement (BATS Global Markets, Inc.)

Incremental Facilities. (a) The Borrower ~~may, by written notice~~ may add one or more incremental term loan facilities to the ~~Administrative Agent from time to time~~Term B Facility (each, ~~request~~ an “Incremental ~~Commitments~~ Term Facility”) and/or increase commitments under the Revolving Facility on the same terms and pricing as the Revolving Facility (any such increase, an “Incremental Revolving Increase” and, together with any Incremental Term Facility, the “Incremental Facilities”) in an aggregate principal amount not to exceed $100,000,000; provided that: (i) no Lender will be required to participate in any such ~~that,~~ Incremental Facility, (ii) no Event of Default or Default exists or would exist immediately after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender., (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties ~~set forth~~ in ~~Article III and in each other~~ the Loan ~~Document~~ Documents shall be true and correct in all material respects (or and in all ~~respects,~~ respects if qualified ~~as to~~ by materiality) on immediately prior to, and as after giving effect to, the incurrence of ~~the date~~ such Incremental ~~Commitments become effective (or if such representation and warranty relates to another date, such other date) and~~ Facility, (iv) the ~~terms~~ maturity date and weighted average life to maturity of any such Incremental ~~Commitments~~ Term Facility shall be no earlier than the maturity date and weighted average life to maturity, respectively, of the Term B Facility, (v) no Incremental Term ~~Loans~~ Facility shall be secured by assets other than Collateral or ~~Incremental Revolving Loans thereunder shall comply with Section 2.25(c).~~guaranteed by persons other than the Guarantors, (cvi) ~~Incremental Commitments~~ a Ratings Reaffirmation shall ~~be established pursuant~~ have been received by the Administrative Agent, (vii) the interest rates and mandatory amortization schedule applicable to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the~~ any Incremental Term ~~Loans~~ Facility shall be determined by the Borrower and the ~~Incremental Term Lenders~~ lenders thereunder on terms and ~~set forth~~ pursuant to documentation to be mutually agreed; provided, further, that the all-in yield (whether in the form of interest rate margins, original issue discount (“OID”) or upfront fees) applicable ~~Incremental Assumption Agreement; provided that (i) the final maturity date of~~ to any Incremental Term ~~Loans shall~~ Facility will not be ~~no earlier~~ more than 0.50% higher than the ~~Latest Maturity Date~~corresponding all-in yield (giving effect to interest rate margins, ~~(ii~~OID, upfront fees, Adjusted Eurodollar Rate floor and Base Rate floor) for the ~~average life to maturity of~~ existing Term B Facility unless the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and interest rate margins with respect to ~~security and~~ such existing Term B Facility is increased by an amount equal to the ~~borrower and guarantors of~~ difference between the ~~Incremental Term Loans shall be the same as the Borrower and Guarantors~~ all-in yield with respect to the Incremental Term ~~Loans~~Facility and the corresponding all-in yield on such existing Term B Facility minus 0.50%; provided, further, that, in determining the all-in yield applicable to the Incremental Term Facility and the Term B Advances (x) customary arrangement, underwriting, amendment or commitment fees payable to the Joint Lead Arrangers (or their respective Affiliates) or to one or more arrangers (or their Affiliates) shall be excluded, (ivy) OID and upfront fees paid to the lenders shall be included (with OID and upfront fees being equated to interest based on assumed four- year life to maturity or, if shorter, the actual weighted average life to maturity), and (z) if an Incremental Term Facility includes an interest rate floor greater than the ~~All-~~applicable interest rate floor under the existing Term B Facility, such differential between interest rate floors shall be equated to an increase in ~~Yield on~~ the applicable interest rate margin with respect to such Incremental Term ~~Loans exceeds~~ Facility for purposes of determining whether an increase to the ~~initial All-~~interest rate margin under the existing Term B Facility shall be required, but only to the extent an increase in ~~Yield of~~ the ~~Tranche~~ interest rate floor in the existing Term B Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to the existing Term ~~Loans by more than 50 basis points (~~B Facility shall be increased to the ~~amount~~ extent of such ~~excess above 50 basis points being referred~~ differential between interest rate floors (all adjustments made pursuant to ~~herein as~~ this clause (vii), the “~~Yield Differential~~MFN Adjustments”); provided, ~~then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential~~further, ~~effective upon the making of such Incremental Term Loans and~~ that (vA) to the extent such terms and documentation are not identical to, in the ~~terms~~ case of ~~the~~ an Incremental Term ~~Loans are inconsistent with~~ Facility, the ~~terms set forth herein~~ Term B Facility (except ~~as set forth in~~ to the extent permitted by clause ~~(i) through~~ (iv) ~~above~~or (vii) above or only applicable after the current Term B Facility Maturity Date), ~~such terms~~ they shall be reasonably satisfactory to the Administrative ~~Agent. Any~~ Agent and (B) any Incremental ~~Revolving Credit Commitment~~ Term Facility shall be pari passu in right of payment and security and will share ratably in any voluntary or mandatory prepayments (other than scheduled amortization payments) of the Term B Facility unless the Borrower and the lenders in respect of such Incremental ~~Revolving Loans thereunder~~Term Facility elect lesser payments; and (viii) ~~shall be implemented as an increase~~ to the ~~Total Revolving Credit Commitments~~ extent reasonably determined by the Administrative Agent that such items are reasonably necessary to protect the first priority lien of the Mortgage and otherwise in Administrative Agent’s reasonable discretion, the Administrative Agent shall be have received (1) amendments to each Mortgage in favor of Collateral Agent existing on ~~terms identical~~ the date of funding of such Incremental Facility in a form reasonably acceptable to Administrative Agent, (2) endorsements to each Title Policy in form reasonably acceptable to Administrative Agent, (3) a Flood Certificate with respect to each Mortgaged Property, (4) favorable legal opinions relating to the ~~existing Revolving Credit Commitments~~ amendments to the Mortgages in form and substance and from counsel reasonably satisfactory to Administrative Agent, and (5) such other documents as may be required in connection with the recording of such amendments to the Mortgages and the ~~Revolving Loans thereunder)~~issuance of such endorsements. (db) ~~In connection with any Incremental Commitments~~Each of the parties hereto hereby agrees that, notwithstanding anything to the ~~Borrower~~contrary set forth in Section 11.05, this Agreement and the other Loan Documents may be amended pursuant to an amendment executed by the Loan Parties, the Administrative Agent and ~~each applicable Incremental Lender shall execute and deliver to~~ the ~~Administrative Agent~~ lenders providing an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement mayFacility, without the consent of any other Lender, to the extent reasonably required to effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section ~~2.25~~2.08, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby ~~agree that~~ expressly and irrevocably, for the ~~minimum borrowing~~benefit of all parties hereto, ~~pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement~~ authorize the Administrative Agent to enter into such amendment. In connection with any such amendment, the Borrower shall ~~not apply~~ deliver to the ~~transactions effected pursuant~~ Administrative Agent such customary documentation and opinions reasonably requested by the Administrative Agent, including such documents which are reasonably necessary or desirable to ensure the ~~immediately preceding sentence~~continued first priority liens and security interests in favor of the Collateral Agent for the benefit of the Secured Parties.

Appears in 1 contract

Sources: Credit Agreement

Incremental Facilities. (a) The Initial Borrower may, ~~by written notice to the Administrative Agent~~ from time to time, ~~request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior~~ by notice to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative ~~Agent shall agree))~~Agent, request an increase in the Revolving Credit Facility (~~iii) whether~~ each such ~~Incremental Commitments are~~ facility increase being an “Incremental Revolving Credit ~~Commitments~~ Facility”), pursuant to additional commitments (the “Incremental Revolving Credit Commitments”), or an increase in the Term B Facility (each such facility increase being an “Incremental Term ~~Loan Commitments and~~ Facility”) pursuant to additional commitments (ivthe “Incremental Term Commitments”), in an aggregate principal amount not to exceed $100,000,000 for all Incremental Facilities, each of which to be effective as of a date that is at least 360 days prior to (x) the Termination Date then in effect in respect of the Revolving Credit Facility in the case of ~~any request for~~ an Incremental Revolving Credit Facility and (y) the scheduled maturity date of the Term B Facility in the case of an Incremental Term ~~Loan Commitments, whether~~ Facility (such date for each such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate Facility, the “Increase Date”), as specified in ~~its sole discretion) or any Additional Lender. (b) It shall be a condition precedent~~ the related notice to the ~~effectiveness of any Incremental Commitment~~ Administrative Agent; provided, however, that (i) in no event shall any Incremental Facility be in a principal amount of less than $25,000,000 (or such lesser amount as shall be approved by the Administrative Agent); (ii) there shall be no more than three (3) Incremental Facilities (or such greater number as shall be approved by the Administrative Agent); (iii) on the Increase Date, the applicable conditions set forth in Section 3.02 and in clause (d) of this Section 2.17 shall be satisfied; (iv) as of the last day of the fiscal quarter of the Borrower immediately preceding the Increase Date, after giving pro forma effect to any such Incremental Facility and other customary and appropriate pro forma adjustment events, including any acquisitions or dispositions or repayment of Debt after the beginning of such fiscal quarter but prior to or simultaneous with the borrowing in respect of such Incremental Facility, the Borrower shall be in pro forma compliance with all financial covenants set forth in Section 5.04; (v) on the Increase Date, after giving pro forma effect to any such Incremental Facility, no Default or Event of Default shall have occurred and be ~~continuing immediately~~ continuing; (vi) each Incremental Revolving Credit Facility shall have a maturity date that is no earlier than the Termination Date then in effect in respect of the Revolving Credit Facility and each Incremental Term Facility shall have a maturity date that is no earlier than the scheduled maturity date in respect of the Term B Facility (but may have nominal amortization prior to ~~or immediately after giving effect~~ such scheduled maturity date so long as the weighted average life to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms maturity of such Incremental ~~Commitments and~~ Term Facility is no shorter than the ~~Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant~~ weighted average life to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ maturity of the then-remaining Advances under the Term B Facility); (vii) the interest rates and amortization schedule applicable to any Incremental ~~Term Loans~~ Facility shall be determined by the Borrower and the ~~Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement~~relevant lenders thereunder; provided that if the Applicable Margin (iwhich, for such purposes only, shall be deemed to include all original issue discount payable to all Lenders providing such Incremental Facility) ~~the final maturity date of~~ relating to any Incremental ~~Term Loans~~ Facility exceeds the Applicable Margin (which, for such purposes only, shall be ~~no earlier~~ deemed to include all original issue discount payable to all Revolving Credit Advances or Term B Advances, as applicable) relating to the Revolving Credit Advances or Term B Advances, as applicable, by more than 0.50%, the ~~Latest Maturity Date~~Applicable Margin relating to the applicable Advances shall be adjusted to be equal to the Applicable Margin (which, for such purposes only, shall be deemed to include all original issue discount payable to all Lenders providing such Incremental Facility) relating to such Incremental Facility minus 0.50%; (iiviii) ~~the average life to maturity of~~ any advances under the Incremental Term ~~Loans~~ Facility shall be ~~no shorter than~~ treated like the ~~remaining average life to maturity of~~ Term B Advances, and any ~~then-outstanding Class of Term Loans, (iii)~~ advances under the Incremental ~~Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans~~ Revolving Credit Facility shall be treated like the ~~same as the Borrower~~ Revolving Credit Advances, in each case in terms of sharing of prepayments and ~~Guarantors with respect to the Term Loans,~~ other appropriate provisions; (ivix) ~~if the All-in Yield on such~~ all other terms and conditions of each Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) Facility to the extent ~~the terms of the Incremental Term Loans are inconsistent~~ not consistent with the terms ~~set forth herein (except~~ and conditions of the Term B Facility or the Revolving Credit Facility, as ~~set forth in clause (i) through (iv) above)~~the case may be, ~~such terms~~ shall be reasonably satisfactory to the Administrative ~~Agent. Any Incremental Revolving Credit Commitment~~ Agent (except as permitted by clauses (vi) and (vii) above); (x) the existing Lenders shall initially have the right, but not the obligation, to commit to up to their Pro Rata Share (or, if consented to by the Borrower and the Administrative Agent to cover declines by other Lenders, more than their Pro Rata Share) of each Incremental ~~Revolving Loans thereunder) shall be implemented as an increase to~~ Facility ratably based on the ~~Total~~ applicable Term Commitments of the Term Lenders and Revolving Credit Commitments ~~and shall be on terms identical to~~ of the ~~existing~~ Revolving Credit ~~Commitments~~ Lenders; and (~~and the Revolving Loans thereunder~~xi) notwithstanding any other provision of any Loan Document (including, without limitation, Section 9.01)~~. (d) In connection with any Incremental Commitments~~, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be ~~necessary or appropriate, in the reasonable opinion of~~ amended by the Administrative Agent and the Borrower, if necessary, to ~~effect~~ provide for terms applicable to each Incremental Facility consistent with the ~~provisions~~ terms hereof. (b) The Administrative Agent shall promptly notify the Lenders of ~~this Section 2.25~~a request by the Borrower for an Incremental Facility, ~~including any amendments necessary~~ which notice shall include (i) the proposed amount of such requested Incremental Facility, (ii) the proposed Increase Date and (iii) the date by which the Lenders wishing to ~~establish~~ participate in the Incremental ~~Term Loan~~ Facility must commit to an increase in the amount of their respective Commitments (the “Commitment Date”). Each Lender that is willing to participate in the requested Incremental Facility (each an “Increasing Lender”) shall, in its sole discretion, give written notice to the Administrative Agent on or prior to the Commitment Date of the amount by which it is willing to increase its applicable Commitment. If the Increasing Lenders notify the Administrative Agent that they are willing to participate in an Incremental Facility by an aggregate amount that exceeds the amount of the requested Incremental Facility, the requested Incremental Facility shall be allocated among the Increasing Lenders in such amounts as are agreed between the Borrower and the Administrative Agent. (c) Promptly following the applicable Commitment Date, the Administrative Agent shall notify the Borrower as to the amount, if any, by which the Increasing Lenders are willing to participate in the requested Incremental ~~Term Loans~~ Facility. If the aggregate amount by which the Increasing Lenders are willing to participate in the requested Incremental Facility on any such Commitment Date is less than the requested Incremental Facility, then the Borrower may extend offers to one or more Eligible Assignees to participate in any portion of the requested Incremental Facility that has not been committed to by the Increasing Lenders as of the Commitment Date. (d) On the applicable Increase Date, each Eligible Assignee that accepts an offer to participate in a ~~new Class~~ requested Incremental Facility in accordance with Section 2.17(c) (each such Eligible Assignee, an “Assuming Lender”) shall become a Lender party to this Agreement as of the applicable Increase Date and the Commitment of each Increasing Lender for such Incremental Facility shall be so increased by such amount (or ~~tranche~~ by the amount allocated to such Lender pursuant to the last sentence of ~~Term Loans~~ Section 2.17(b)) as of such Increase Date; provided, however, that the Administrative Agent shall have received on or before the Increase Date the following, each dated such date: (i) certified copies of resolutions of the Board of Directors (or other analogous governing body) of the Borrower approving the applicable Incremental Facility and ~~such other technical amendments as~~ the corresponding modifications to this Agreement and an opinion of counsel for the Borrower (which may be ~~necessary~~ in-house counsel), addressing the due execution, authorization, delivery and enforceability of the documents evidencing such Incremental Facility and the absence of any violation of applicable law, constitutive documents or ~~appropriate~~ material contracts binding upon the Borrower, in a form reasonably satisfactory to the ~~reasonable opinion of~~ Administrative Agent; (ii) an assumption agreement from each Assuming Lender, if any, in form and substance satisfactory to the Borrower and the Administrative Agent, duly executed by such Assuming Lender, the Administrative Agent and the ~~Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25.~~Borrower; and (eiii) ~~Upon~~ confirmation from each Increasing Lender of the increase in the ~~Revolving Credit Commitments pursuant~~ amount of its Commitment in a writing satisfactory to ~~this Section ‎2.25~~the Borrower and the Administrative Agent. On the applicable Increase Date, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage upon fulfillment of the ~~aggregate outstanding participations hereunder~~ conditions set forth in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding ~~sentence~~sentence of this Section 2.17(d), the Administrative Agent shall notify the Lenders (including, without limitation, each Assuming Lender) and the Borrower, on or before 11:00 A.M. (New York City time), by telecopier, of the occurrence of the applicable Incremental Facility to be effected on the related Increase Date and shall record in the Register the relevant information with respect to each Increasing Lender and each Assuming Lender on such date.

Appears in 1 contract

Sources: Credit Agreement (NCO Teleservices, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans (each additional Incremental Term Loan, an “Incremental Term Facility”) or Revolving Commitments (any such increase, an “Incremental Revolving Facility”; together with any Incremental Term Facilities, the “Incremental Facilities”), as applicable, by ~~written notice~~ executing and delivering to the Administrative Agent ~~from time to time, request Incremental Commitments in~~ an ~~amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth~~ Increased Facility Activation Notice specifying (i) the amount of such increase and the ~~Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~Facility or Facilities involved, (ii) the ~~date on which such Incremental Commitments are requested to become effective~~ applicable Increased Facility Closing Date (which ~~shall not~~ may be ~~less than 10 Business Days nor more than 60 days~~ selected by the Borrower after the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree)),~~ Closing Date) and (iii~~) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv~~) in the case of ~~any request for~~ Incremental Term ~~Loan Commitments~~Loans, ~~whether~~ (x) the applicable Incremental Term Maturity Date, (y) the amortization schedule for such Incremental Term ~~Loan Commitments are commitments to make additional~~ Facility and (z) the Applicable Margin for such Incremental Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Commitment Facility; provided, that (iA) no Default or Event of Default exists or shall ~~have occurred and be continuing~~ exist immediately ~~prior to~~ before or ~~immediately~~ after giving effect to such Incremental ~~Commitments,~~ Facility; (iiB) ~~the Total Leverage Ratio, determined~~ on a ~~Pro Forma Basis~~ pro forma basis after giving effect to such Incremental Facility as though fully borrowed and any other transactions in connection therewith, the Borrower shall be in compliance with the Financial Covenants (~~assuming that all Incremental Commitments have been fully funded and without netting~~ whether or not the ~~proceeds of any Incremental Loans~~Financial Covenants are then in effect), ~~shall not exceed 2.75:1.00,~~ recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available; (~~iii~~C) each of the representations and warranties ~~set forth~~ made by any Loan Party in ~~Article III and in each other~~ or pursuant to the Loan ~~Document~~ Documents shall be true and correct in all material respects ~~(or~~ immediately prior to, and after giving effect to, such Incremental Facility, except for representations and warranties made as of a specific earlier date that shall be true and correct in all ~~respects, if qualified as to materiality) on and~~ material respects as of such earlier date; (D) the maturity date and weighted average life to maturity of any such Incremental ~~Commitments become effective~~ Term Facility shall be no earlier than or shorter than the maturity date and weighted average life to maturity, respectively, of the Term Facility; (~~or if such representation and warranty relates to another date, such other date) and (iv~~E) the ~~terms of such Incremental Commitments~~ interest rates and ~~the~~ amortization schedule applicable to any Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans Facility shall be determined by the Borrower and the ~~Incremental Term~~ Lenders ~~and set forth in the applicable Incremental Assumption Agreement~~thereunder; provided that the total yield (icalculated for both the Incremental Term Loans and the Term Loans, including the upfront fees, any interest rate floors and any OID, but excluding any arrangement, underwriting or similar fee paid by the Borrower)) ~~the final maturity date~~ in respect of any Incremental Term Loans will not be more than 0.50% higher than the corresponding total yield for the existing Term Loans (it being understood that any such increase may take the form of OID with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), unless the interest rate margins with respect to the existing Term Loans are increased by an amount equal to the difference between the total yield with respect to the Incremental Term Loans and the corresponding total yield on the existing Term Facility minus 0.50% and (F) the Incremental Revolving Facility shall be ~~no earlier than~~ on terms and pursuant to documentation applicable to the ~~Latest Maturity Date~~Revolving Facility (including the maturity date in respect thereof) and any Incremental Term Facility shall be on terms and pursuant to documentation to be determined, ~~(ii)~~ provided that, to the ~~average life to maturity~~ extent such terms and documentation are not consistent with, in the case of the Incremental Term ~~Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term~~ Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term ~~Loans,~~ Facility (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) except to the extent ~~the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in~~ permitted by clause (iD) ~~through~~ or (ivE) above), ~~such terms~~ they shall be reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments and borrowings of Incremental Term Loans shall not exceed (x) $50,000,000 plus (y) an additional amount so long as the Total Leverage Ratio (as determined on a pro forma basis giving effect to such Incremental Facility as though fully borrowed and any other transactions in connection therewith) is not in excess of 4.00:1.00 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $5,000,000 and (y) 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 participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. (b) Any ~~Incremental Revolving Credit Commitment (~~additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed and provided that, with respect to an Incremental ~~Revolving Loans thereunder~~Term Facility, no consent of the Administrative Agent shall be needed if such New Lender is an Affiliate of a Lender or an Approved Fund), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.22(a) shall ~~be implemented as an increase~~ execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit C, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the ~~Total Revolving Credit Commitments~~ same extent as if originally a party hereto and shall be ~~on terms identical~~ bound by and entitled to the ~~existing~~ benefits of this Agreement. (c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the Revolving ~~Credit~~ Facility, the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Borrower and the ~~Revolving Loans thereunder)~~relevant Lender. (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence The proceeds of the Incremental ~~Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions~~ Facilities shall be used for ~~delivery of opinions of counsel and other documentation consistent with the conditions set forth in~~ purposes permitted by Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.255.10. (e) ~~Upon each increase~~ Notwithstanding anything to the contrary in ~~the Revolving Credit Commitments pursuant to~~ this ~~Section ‎2.25~~Agreement, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such the parties hereto hereby agrees that, ~~after giving effect to~~ on each ~~such deemed assignment and assumption of participations~~Increased Facility Activation Date, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall ~~not apply~~ be amended to the ~~transactions effected pursuant~~ extent (but only to the ~~immediately preceding sentence~~extent) necessary to reflect the existence and terms of the Incremental Term Loans evidenced thereby. Any such deemed amendment may be effected in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.

Appears in 1 contract

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

Incremental Facilities. (a) ~~The Borrower may~~On one or more occasions at any time after the Closing Date, the Obligors may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request an increase to the existing Commitments (any such increase, ~~request~~ the "Incremental Commitments" and the loans made thereunder, the "Incremental Loans") in an aggregate amount not to exceed $300,000,000. Each such notice shall specify the date (each, an "Increased Amount Date") on which the Obligors propose that such Incremental Commitments ~~in an amount such that~~shall be effective, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) the amount of the Incremental Commitments being requested (which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000),~~ date not less than ten (ii10) Business Days (or such shorter period as may be agreed by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent. Incremental Commitments ~~are requested~~ may be provided by any existing Lender (it being understood that no existing Lender shall have an obligation to ~~become effective~~ make, or provide commitments with respect to, an Incremental Loan) or by any other Person (~~which shall not be less than 10 Business Days nor more than 60 days after the date~~ each, an "Incremental Lender"); provided that any such Incremental Lender to whom any portion of such ~~notice (or such longer or shorter period as~~ Incremental Commitment shall be allocated shall be subject to the approval of the Borrower, the Administrative ~~Agent shall agree))~~Agent, ~~(iii) whether~~ the Issuing Banks and the Swingline Lender unless such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from Lender is an existing ~~Lenders~~ Lender (each of which approvals shall not be unreasonably withheld, conditioned or delayed). The terms and provisions of any Incremental Commitments shall be ~~entitled~~ identical to ~~agree or decline to participate in its sole discretion) or any Additional Lender~~the existing Commitments. (b) ~~It shall be a condition precedent to the~~ The effectiveness of any Incremental Commitments and the availability of any borrowings under any such Incremental Commitment ~~that~~ shall be subject to the satisfaction of the following conditions precedent: (i) immediately prior to and after giving pro forma effect to such Incremental Commitments and borrowings and the use of proceeds thereof, no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreementexist; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then0010146-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.0000535 NYO1: 2000703970 .53

Appears in 1 contract

Sources: Revolving Credit Agreement (Millicom International Cellular Sa)

Incremental Facilities. (a) ~~The Borrower may, by written notice~~ Subject to the ~~Administrative Agent~~ terms and conditions set forth herein and so long as no Default or Event of Default has occurred and is continuing, the Borrower shall have the right, at any time and from time to ~~time~~time prior to the Maturity Date, ~~request~~ to incur additional Indebtedness under this Credit Agreement in the form of (i) one or more increases to the Revolving Committed Amount (each an “Increased Revolver Commitment”) which shall constitute one and the same Facility as the existing Revolving Commitments or (ii) 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 in 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 time any such Incremental Commitments are entered into the greater of (x) $400,000,000 and (y) an amount such that, on a Pro Forma Basis after giving effect ~~thereto, the aggregate amount of~~ to such Incremental Commitments ~~established at or prior to~~ (and assuming such ~~time~~ Incremental Commitments are fully drawn and/or funded, as applicable, and applied for the purpose intended) the Consolidated Net Leverage Ratio does not exceed ~~$100,000,000~~3.00 to 1.00.1.00; provided, further, that no Incremental Commitments shall be permitted from the Amendment No. ~~Such notice~~ 3 Effective Date through September 30, 2021. (b) The following terms and conditions shall ~~set forth~~ apply to each Increased Revolver Commitment: (i) Obligations thereunder shall constitute Credit Party Obligations and will be guaranteed (and secured, to the ~~amount~~ extent applicable) with the other Credit Party Obligations on a pari passu basis and will not be guaranteed by any obligor or secured by any assets that do not guarantee or secure, respectively, the Credit Party Obligations, (ii) each Increased Revolver Commitment shall have the same terms (including interest rate and maturity date but other than with respect to any upfront fees) as the existing Revolving Commitments, (iii) each Increased Revolver Commitment shall be entitled to the same voting rights as the existing Revolving Commitments, voting as one class, and shall be entitled to receive a pro rata share of proceeds of prepayments on the ~~Incremental Commitments being requested~~ same basis as the existing Revolving Loans and shall be considered an increase to the existing Revolving Commitments, (~~which~~ iv) each Increased Revolver Commitment shall be obtained from existing Lenders or from other banks, financial institutions or Funds, in each case in accordance with the terms set forth below, (v) the proceeds of all Loans thereunder will be used for the purposes set forth in Section 3.11, (vi) the Borrower shall execute a Note in favor of any new Lender or any existing Lender requesting a Note whose Revolving Commitment is increased, (vii) on the effective date of each such increase, the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (viii) each such Increased Revolver Commitment shall be in ~~minimum increments of $500,000 and~~ a minimum amount of $~~5,000,000~~5,000,000 (and $1,000,000 increments in excess thereof), and (iiix) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall ~~agree))~~have received from the Borrower (A) resolutions, ~~(iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments~~ legal opinions and other corporate authority documents reasonably requested by the Administrative Agent, substantially the same in form and substance as those delivered on the Closing Date pursuant to Section 4.1 and (ivB) updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the ~~case~~ Administrative Agent, demonstrating that, after giving effect to such Increased Revolver Commitment and any borrowings thereunder and the application thereof on a Pro Forma Basis, the Credit Parties will be in compliance with the financial covenants set forth in Section 5.9 (provided that for purposes of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. this clause (b) It the applicable Consolidated Net Leverage Ratio shall be a 4.50 to 1.00 for any fiscal quarter and, if the Collateral Event has occurred, the condition ~~precedent to~~ in the ~~effectiveness of any Incremental Commitment that (i~~proviso set forth in Section 2.22(a)) and no Default or Event of Default shall ~~have occurred~~ 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 ~~continuing immediately prior~~ reallocated by causing such fundings and repayments (which shall not be subject to ~~or immediately~~ 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 ~~Incremental~~ Increased Revolver Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Lender will hold Revolving Loans ~~thereunder shall comply with Section 2.25(c~~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 ~~Commitments~~ Facility: (i) Obligations thereunder shall constitute Credit Party Obligations and will be ~~established pursuant~~ guaranteed (and secured, to ~~an amendment~~ 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, (~~an “~~ii) each Incremental ~~Assumption Agreement”~~Facility shall otherwise have terms (including pricing terms) ~~relating~~ to ~~this Agreement. The terms of the Incremental Term Loans shall~~ be ~~determined~~ agreed by the Borrower and the Lenders providing the Incremental ~~Term Lenders~~ 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 ~~set forth~~ “excess cash flow” (to be defined in a manner satisfactory to the ~~applicable Incremental Assumption Agreement; provided that~~ Borrower and the Administrative Agent)) may be included on then-market terms, and (iC) ~~the final maturity date~~ all terms of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms Facility not set forth ~~herein (except as set forth in clause (i) through (iv) above)~~herein, ~~such terms~~ shall be reasonably satisfactory to the Administrative Agent~~. Any~~ , (iii) each Incremental ~~Revolving Credit Commitment (and the Incremental Revolving Loans thereunder)~~ Facility shall ~~be implemented as an increase to the Total Revolving Credit Commitments~~ constitute a separate Facility hereunder, and shall be ~~on terms identical~~ incorporated into the Credit Documents such that the Incremental Lenders have similar rights and privileges to the Lenders, (iv) each Incremental Facility shall be obtained from existing ~~Revolving~~ Lenders or from other banks, financial institutions or Funds, in 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 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 execute a Note in favor of any Incremental Lender requesting a Note representing its Loans under the Incremental Facility, (vii) on the date of incurrence of the Incremental Loans, the conditions to Extensions of Credit ~~Commitments~~ in Section 4.2 shall have been satisfied, (viii) each such commitment for an Incremental Facility shall be in a minimum amount of $5,000,000 (and ~~the Revolving Loans thereunder~~$1,000,000 increments in excess thereof). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and ~~such other documentation as~~ (ix) the Administrative Agent shall ~~reasonably specify to evidence~~ have received from the ~~Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of~~ Borrower (A) resolutions, legal opinions ~~of counsel~~ and other ~~documentation consistent with the conditions set forth in Section 4.02, all to the extent~~ corporate authority documents reasonably requested by the Administrative ~~Agent or~~ Agent, substantially the ~~other parties~~ same in form and substance as those delivered on the Closing Date pursuant to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement Section 4.1 and ~~the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent~~ (B) updated financial projections and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranchean officer’s certificate, in each case ~~on terms consistent with this Section 2.25. (e) Upon each increase~~ in form and substance reasonably satisfactory to the ~~Revolving Credit Commitments pursuant to this Section ‎2.25~~Administrative Agent, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such demonstrating that, after giving effect to ~~each such deemed assignment and assumption of participations,~~ the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness borrowing of such Incremental ~~Revolving~~ Loans and the application thereof on a Pro Forma Basis, the Credit ~~Commitment~~ Parties will be ~~prepaid from~~ in compliance with the ~~proceeds~~ financial covenants set forth in Section 5.9 (provided that for purposes of ~~additional Revolving Loans made hereunder so that~~ this clause (c) the ~~Revolving Loans are thereafter held by~~ applicable Consolidated Net Leverage Ratio shall be 4.50 to 1.00 for any fiscal quarter and, if the ~~Revolving Credit~~ Collateral Event has occurred, the condition in the proviso set forth in Section 2.22(a)) and no Default or Event of Default shall exist. All Incremental Lenders ~~according~~ shall enter into such joinder agreements to ~~their Revolving Credit Percentages~~ give effect thereto as the Administrative Agent may reasonably request. (~~after giving effect~~ d) Notwithstanding anything to the ~~increase~~ contrary in ~~Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with~~ Section ~~2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained~~ 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 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 waterfall, and the inclusion of customary provisions for a term loan throughout the Credit Documents.\ (e) Upon executing the joinder documentation requested by the Administrative Agent, each bank, financial institution or other entity committing to be a new Revolving Lender or Incremental Lender shall ~~not apply~~ become a Lender for all purposes and to the ~~transactions effected pursuant~~ same extent as if originally a party hereto and shall be bound by and entitled to the ~~immediately preceding sentence~~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 provide all or a portion of any Increased Revolver Commitment may elect or decline, in its sole discretion, to provide such Increased Revolver Commitments.

Appears in 1 contract

Sources: Credit Agreement (Mednax, Inc.)

Incremental Facilities. (a) The Borrower ~~may~~may at any time or from time to time after the Closing Date, by ~~written~~ notice to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), request (x) one or more tranches of term loans (each such tranche, an “Incremental ~~Commitments in an amount such that, after giving effect thereto~~Term Loan” and collectively, the ~~aggregate amount of~~ “Incremental ~~Commitments established at~~ Term Loans”) or ~~prior to such time does not exceed $100,000,000. Such notice shall set forth~~ (iy) one or more increases in the amount of the ~~Incremental~~ Revolving Commitments ~~being requested~~ (~~which shall be in minimum increments of $500,000 and~~ each such increase, a ~~minimum amount of $5,000,000)~~“Revolving Commitment Increase” and, ~~(ii)~~ together with the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or “Incremental Term ~~Loan Commitments and~~ Loans, the “Incremental Loans”); provided that: (ivi) in both at the ~~case~~ time of any such request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to and upon the effectiveness of any Incremental ~~Commitment that~~ Amendment referred to below (i) an “Incremental Loan Closing Date”), no Default or Event of Default shall ~~have occurred and be continuing immediately prior to or immediately~~ exist after giving effect to ~~such~~ the extension of credit contemplated on the Incremental ~~Commitments,~~ Loan Closing Date; (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ each of ~~any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties ~~set forth~~ made by any Loan Party in ~~Article III and in each other~~ or pursuant to the Loan ~~Document~~ Documents shall be true and correct in all material respects ~~(or in all respects, if qualified as to materiality)~~ on and as of the Incremental Loan Closing Date, as if made on and as of such date (except to the extent that such ~~Incremental Commitments become effective (or if such representation~~ representations and ~~warranty relates~~ warranties specifically refer to ~~another~~ an earlier date, in which case they shall be true and correct in all material respects as of such ~~other~~ earlier date~~) and~~ ); and (iviii) the ~~terms~~ Borrower shall be in compliance with the covenants set forth in Section 7.1 determined on a pro forma basis as of ~~such Incremental Commitments and~~ the most recently ended Reference Period as if (x) the Incremental Term Loans or (y) the additional Revolving Loans, as applicable, proposed to be borrowed on such Incremental Closing Date had been outstanding and fully borrowed on the first day of such Reference Period of the Borrower for testing compliance therewith (bearing interest throughout the Reference Period at the rate applicable on the relevant Incremental Loan Closing Date). Each Incremental Term Loan shall be in an aggregate principal amount that is not less than $50,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of any Incremental Loans, when taken together with all other Incremental Loans to date, shall not exceed $200,000,000. (b) The Incremental Loans shall rank pari passu in right of payment with the Term Loans and Revolving Loans. The Incremental Term Loans (i) shall not mature earlier than the Term Loan Maturity Date or the Revolving Termination Date, (ii) shall have a weighted average life to maturity no shorter than the remaining weighted average life to maturity of the Term Loan and (iii) shall otherwise be on terms, including with respect to interest rate and amortization (subject to the foregoing clause (ii)), and pursuant to documentation, to be determined by the Borrower, the Administrative Agent and the lenders thereunder. Other than with respect to the Applicable Margin or Undrawn Fee Rate, the terms of the Revolving Commitments and Revolving Loans ~~thereunder~~ made pursuant to a Revolving Commitment Increase shall ~~comply with Section 2.25(c)~~be identical to the terms of the existing Revolving Commitments and Revolving Loans. (c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Loans. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution as determined by the Borrower (any such other bank or other financial institution being called an “Additional Lender”); provided that (i) no Lender shall have any obligation to provide any Incremental Loan or commitment in respect thereof unless it agrees to do so in its sole discretion and (ii) the Administrative Agent shall have consented (not to be unreasonably withheld) to such Additional Lender. (d) Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be ~~established~~ provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental ~~Assumption Agreement~~Amendment”) ~~relating~~ to this ~~Agreement. The terms of~~ Agreement and, as appropriate, the ~~Incremental Term Loans shall be determined~~ other Loan Documents, executed by the ~~Borrower~~ Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. ~~Any~~ The Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this ~~Section 2.25, including any amendments necessary~~ Section. Each Additional Lender executing an Incremental Amendment shall become a Lender for all purposes and to ~~establish~~ the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement. The Borrower will use the proceeds of the Incremental Term ~~Loan Commitments and Incremental Term Loans as a new Class or tranche of Term~~ Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with Revolving Commitment Increases for any purpose not prohibited by this ~~Section 2.25~~Agreement. (e) Upon each increase in the Revolving ~~Credit~~ Commitments pursuant to this ~~Section ‎2.25~~Section, (i) each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment~~ immediately prior to such increase will automatically and without further act be deemed to have assigned to each ~~Incremental~~ Lender providing a portion of the Revolving ~~Credit Lender~~ Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing~~ Revolving ~~Credit~~ Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (x) participations hereunder in Letters of Credit and (y) participations hereunder in Swingline Loans held by each Revolving ~~Credit~~ Lender (including each such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase Lender) will equal ~~its~~ the percentage of the aggregate Revolving ~~Credit Percentage. If,~~ Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Commitment and (ii) if on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall ~~upon~~ on or prior to the effectiveness of such ~~Incremental~~ Revolving ~~Credit~~ Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder ~~so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages~~ (~~after giving effect to the~~ reflecting such increase in Revolving ~~Credit~~ Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any ~~Revolving Credit~~ Lender in accordance with Section ~~2.16~~3.10. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (MSC Industrial Direct Co Inc)

Incremental Facilities. (a) The ~~Borrower may~~Borrower, by written notice to the Administrative ~~Agent from time to time~~Agent, may request the establishment of Incremental Revolving Commitments ~~in an amount such that, after giving effect thereto,~~ and/or the establishment of Incremental Term Commitments; provided that the aggregate amount of all Incremental Commitments established ~~at or prior to such time does~~ hereunder shall not exceed $~~100,000,000~~150,000,000. Such notice shall set forth (i) the amount and type of the requested Incremental Commitments ~~being requested (which shall be in minimum increments of $500,000~~ and ~~a minimum amount of $5,000,000),~~ (ii) the date on which such Incremental Commitments are requested to become effective (which shall be not be less than 10 Business Days ~~nor~~ or more than 60 days after the date of such notice unless otherwise agreed by the Borrower and the Administrative Agent), and, in the case of a request for Incremental Revolving Commitments, shall offer each Revolving Lender the opportunity to increase its Revolving Commitment, by its Applicable Revolving Percentage of the proposed increased amount. Each such Revolving Lender shall, by notice to the Borrower and the Administrative Agent given not more than 15 days after the date of the Borrower’s notice, either agree to increase its Revolving Commitment, by all or a portion of the offered amount or decline to increase its Revolving Commitment (and any such Revolving Lender that does not deliver such a notice within such period of 15 days shall be deemed to have declined to increase its Revolving Commitment). In the event that, on the 15th day after the Borrower shall have delivered a notice pursuant to the first sentence of this paragraph relating to Incremental Revolving Commitments, the Revolving Lenders shall have agreed pursuant to the preceding sentence to increase their Revolving Commitments by an aggregate amount less than the increase in the total Revolving Commitments requested by the Borrower, the Borrower may, at its expense, arrange for one or more banks or other financial institutions (any such ~~longer~~ bank or ~~shorter period~~ other financial institution being called an “Augmenting Revolving Lender”), which may include any Revolving Lender, to extend Revolving Commitments or increase their existing Revolving Commitments in an aggregate amount equal to the unsubscribed amount. Each Augmenting Revolving Lender, if not already a Revolving Lender hereunder, and each Incremental Term Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent and, in the case of an Augmenting Revolving Lender, the Swingline Lender and each Issuing Bank (which approvals shall not be unreasonably withheld or delayed) and each Incremental Lender shall execute all such documentation as the Administrative Agent shall ~~agree)), (iii) whether such~~ reasonably specify to evidence its Incremental ~~Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv)~~ Commitment and/or its status as a Lender hereunder. Any increase in the ~~case of any request for Incremental Term Loan Commitments~~total Revolving Commitments may be made in an amount which is less than the increase requested by the Borrower if the Borrower is unable to arrange for, ~~whether such Incremental Term Loan Commitments are commitments~~ or chooses not to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lenderarrange for, Augmenting Revolving Lenders. (b) ~~It shall be a condition precedent to the effectiveness~~ The terms and conditions of any Incremental Revolving Commitment and Loans and other extensions of credit to be made thereunder shall be identical to those of the Revolving Commitments and Loans and other extensions of credit made thereunder, and shall be treated as a single Class with such Revolving Commitments and Loans; provided that ~~(i) no Default~~ the Borrower at its election may pay upfront or ~~Event of Default shall have occurred~~ closing fees with respect to Incremental Revolving Commitments without paying such fees with respect to the other Revolving Commitments. The terms and be continuing immediately prior to or immediately after giving effect to such Incremental Commitments, (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds conditions of any Incremental Loans), shall not exceed 2.75:1.00, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Term Commitments and the Incremental Term Loans ~~or Incremental Revolving Loans~~ to be made thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and be, except as otherwise set forth in the applicable Incremental ~~Assumption Agreement~~Facility Agreement with respect to pricing, amortization and maturity, identical to those of the Term Commitments and the Term Loans (and otherwise shall be on terms and subject to conditions reasonably satisfactory to the Administrative Agent); provided that (i) the ~~final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the~~ weighted average life to maturity of ~~the~~ any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term Loans and (ii) no Incremental Term Maturity Date shall be earlier than the Term Maturity Date. Any Incremental Term Commitments established pursuant to an Incremental Facility Agreement that have identical terms and conditions, and any ~~then-outstanding Class~~ Incremental Term Loans made thereunder, shall be designated as a separate series (each a “Series”) of Incremental Term ~~Loans~~Commitments and Incremental Term Loans for all purposes of this Agreement. (c) The Incremental Commitments shall be effected pursuant to one or more Incremental Facility Agreements executed and delivered by Parent, the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent; provided that no Incremental Commitments shall become effective unless (i) on the date of effectiveness thereof, immediately after giving effect to such Incremental Commitments, no Default shall have occurred and be continuing, (ii) on the date of effectiveness thereof and after giving effect to the making of Loans and issuance of Letters of Credit thereunder, as applicable, to be made on such date, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that expressly relates to a prior date, in which case such representation and warranty shall be true and correct in all material respects with respect to such prior date, (iii) the Borrower shall make any payments required to be made pursuant to Section 2.16 in connection with such Incremental ~~Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security~~ Commitments and the ~~borrower~~ related transactions under this Section and ~~guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans,~~ (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (Parent and the ~~Incremental Revolving Loans thereunder)~~ Borrower shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver have delivered to the Administrative Agent an ~~Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as~~ officer’s certificate to the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions effect set forth in ~~Section 4.02~~clauses (i), (ii) and (iii) above and shall have satisfied all such other conditions (if any) as shall be required pursuant to the ~~extent reasonably requested by the Administrative Agent or the other parties to such~~ applicable Incremental ~~Assumption~~ Facility Agreement. ~~The Administrative Agent shall promptly notify each Lender as to the effectiveness of each~~ Each Incremental ~~Assumption Agreement. Any Incremental Assumption~~ Facility Agreement may, without the consent of any ~~other~~ Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the provisions of this ~~Section 2.25~~Section. (d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, ~~including any amendments necessary~~ (i) such Incremental Lender shall be deemed to ~~establish the Incremental Term Loan~~ be a “Lender” (and a Lender in respect of Commitments and ~~Incremental Term~~ Loans ~~as a new Class~~ of the applicable Class) hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders (or ~~tranche~~ Lenders in respect of ~~Term~~ Commitments and Loans of the applicable Class) hereunder and ~~such~~ shall be bound by all agreements, acknowledgements and other ~~technical amendments as may be necessary~~ obligations of Lenders (or ~~appropriate~~ Lenders in respect of Commitments and Loans of the applicable Class) hereunder and under the other Loan Documents, and (ii) in the ~~reasonable opinion~~ case of any Incremental Revolving Commitment, (A) such Incremental Revolving Commitment shall constitute (or, in the ~~Administrative Agent and~~ event such Incremental Lender already has a Revolving Commitment, shall increase) the ~~Borrower in connection with the establishment~~ Revolving Commitment of such ~~new Class or tranche~~Incremental Lender and (B) the Aggregate Revolving Commitment shall be increased by the amount of such Incremental Revolving Commitment, in each ~~case on terms consistent with this Section 2.25~~case, subject to further increase or reduction from time to time as set forth in the definition of the term “Revolving Commitment”. For the avoidance of doubt, upon the effectiveness of any Incremental Revolving Commitment, the Revolving Exposure of the Incremental Revolving Lender holding such Commitment, and the Applicable Percentage of all the Revolving Lenders, shall automatically be adjusted to give effect thereto. (e) ~~Upon each increase~~ On the date of effectiveness of any Incremental Revolving Commitments, if any Revolving Loans are outstanding, the Borrower (i) shall prepay all Revolving Loans then outstanding (including all accrued but unpaid interest thereon) and (ii) may, at its option, fund such prepayment by simultaneously borrowing Revolving Loans in accordance with this Agreement, which Revolving Loans shall be made by the Revolving ~~Credit Commitments pursuant to this Section ‎2.25, each~~ Lenders ratably in accordance with their respective Applicable Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, Percentage (calculated after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving ~~Credit Lender~~Commitments) ~~will~~ provided that such prepayment of Revolving Loans pursuant to this paragraph shall not be required if such Incremental Revolving Commitments are effected entirely by ratably increasing the Revolving Commitments of the existing Revolving Lenders. The payments made pursuant to clause (i) above in respect of each Eurodollar Loan shall be subject to Section 2.16. (f) Subject to the terms and conditions set forth herein and in the applicable Incremental Facility Agreement, each Lender holding an Incremental Term Commitment of any Series shall make a loan to the Borrower in an amount equal ~~its Revolving Credit Percentage. If,~~ to such Incremental Term Commitment on the date specified in such Incremental Facility Agreement. (g) The Administrative Agent shall notify the Lenders promptly upon receipt by the Administrative Agent of ~~such increase, there are~~ any ~~Revolving Loans outstanding, such Revolving Loans shall upon~~ notice from the Borrower referred to in Section 2.23(a) and of the effectiveness of ~~such~~ any Incremental Commitments, in each case advising the Lenders of the details thereof and, in the case of effectiveness of any Incremental Revolving ~~Credit Commitment be prepaid from~~ Commitments, of the ~~proceeds~~ Applicable Percentages of ~~additional Revolving Loans made hereunder so that~~ the Revolving ~~Loans are thereafter held by the Revolving Credit~~ Lenders ~~according to their Revolving Credit Percentages (~~after giving effect thereto and of the prepayments and borrowings required to ~~the increase in Revolving Credit Commitments), which prepayment shall~~ be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected made pursuant to ~~the immediately preceding sentence~~Section 2.23(e).

Appears in 1 contract

Sources: Amendment and Restatement Agreement (American Axle & Manufacturing Holdings Inc)

Incremental Facilities. (a) The Borrower ~~may~~and any one or more Lenders (including New Lenders) may from time to time agree that such Lenders shall make, obtain or increase the amount of their Incremental Term Loans or Revolving Commitments (any such increased Revolving Commitments, “Incremental Revolving Commitments”), as applicable, by ~~written notice~~ executing and delivering to the Administrative Agent ~~from time to time, request~~ an Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth Facility Activation Notice specifying (i) the amount of such increase and the ~~Incremental Commitments being requested (which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000)~~Facility or Facilities involved, (ii) the ~~date on which such~~ applicable Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), Facility Closing Date and (iii~~) whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv~~) in the case of ~~any request for~~ Incremental Term ~~Loan Commitments~~Loans, ~~whether~~ (w) the applicable Incremental Term Maturity Date, (x) the amortization schedule for such Incremental Term ~~Loan Commitments are commitments to make additional~~ Loans and (y) the Applicable Margin for such Incremental Term Loans; provided, that: (i) the aggregate principal amount (or committed amount, if applicable) of all Incremental Term Loans ~~of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek~~ and Incremental ~~Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to~~ Revolving Commitments, together with the ~~effectiveness~~ aggregate principal amount of any Incremental ~~Commitment that~~ Equivalent Debt and the outstanding principal amount (ior committed amount, if applicable) of any Term Loans or Revolving Commitments, shall not exceed $1,350,000,000; (ii) (A) with respect to any Incremental Term Loans being incurred to finance a Permitted Acquisition designated by the Borrower as a “Limited Conditionality Acquisition”, no Default or Event of Default ~~shall have~~ has occurred and be is continuing as of the date of entry into the applicable acquisition, merger or similar agreement governing such acquisition or (B) otherwise, as of the applicable Incremental Facility Activation Date, immediately prior to ~~or immediately~~ and after giving effect to ~~such~~ any Incremental ~~Commitments,~~ Facility Activation Notice (~~ii)~~ including the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds~~ making of any Incremental ~~Loans~~Term Loans or Incremental Revolving Commitments pursuant thereto), no Event of Default has occurred and is continuing or shall ~~not exceed 2.75:1.00,~~ result therefrom; (iii) the Borrower shall be in compliance, as of any Incremental Facility Activation Date, on a pro forma basis (including giving pro forma effect to the applicable Incremental Facility Activation Notice (including the making of any Incremental Term Loans and any Incremental Revolving Commitments thereunder (and assuming, in the case of any Incremental Facility Activation Notice with respect to Incremental Revolving Commitments that such commitments are fully drawn) and any Permitted Acquisition made with the proceeds thereof), with the financial covenants set forth in Section 7.1, recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available; (iv) each of the representations and warranties ~~set forth~~ made by any Loan Party in ~~Article III and in each other~~ or pursuant to the Loan ~~Document~~ Documents shall be true and correct in all material respects (except that any representation or warranty which is already qualified as to materiality or by reference to Material Adverse Effect shall be true and correct in all respects) (A) with respect to Incremental Term Loans being incurred to finance a Limited Conditionality Acquisition, ~~if qualified as to materiality) on and~~ solely as of the date of execution and delivery of the applicable acquisition, merger or similar agreement governing such acquisition or (B) otherwise, as of the applicable Incremental ~~Commitments become effective~~ Facility Activation Date, immediately prior to and after giving effect to the applicable Incremental Facility Activation Notice (~~or if such representation and warranty relates to another date, such other date) and (iv)~~ including the ~~terms~~ making of ~~such Incremental Commitments and the~~ any Incremental Term Loans or Incremental Revolving Commitments (or Revolving Loans ~~thereunder~~ in respect thereof) pursuant thereto), in each case, unless stated to relate to a specific earlier date, in which case, such representations and warranties shall ~~comply with Section 2.25(c).~~be true and correct in all material respects as of such earlier date; (cv) ~~Incremental Commitments shall be established pursuant to an amendment~~ [reserved]; (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (ivi) the ~~final~~ weighted average life to maturity ~~date~~ of any Incremental Term ~~Loans~~ Facility shall be no earlier than the ~~Latest Maturity Date, (ii) the~~ weighted average life to maturity of the Tranche A Term Facility; (vii) [reserved]; (viii) with respect to any Incremental Term ~~Loans shall be no shorter than~~ Facility having terms customary for a tranche A term loan facility incurred on or before the ~~remaining average life to maturity~~ date that is the eighteen-month anniversary of ~~any then-outstanding Class of Term Loans~~the Restatement Effective Date, if the total yield (~~iii)~~ calculated for both the Incremental Term Loans ~~will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment~~ and ~~with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to~~ the Term Loans, including the upfront fees, any interest rate floors and any OID (ivas defined below but excluding any arrangement, underwriting, structuring or similar fee paid by the Borrower and not paid to Lenders generally)) ~~if the All-~~in ~~Yield on~~ respect of any such Incremental Term Loans exceeds the ~~initial All-in Yield of~~ total yield for the existing Tranche B A Term Loans by more than ~~50 basis points~~ 0.50% (it being understood that any such increase may take the ~~amount~~ form of ~~such excess above 50 basis points being referred to herein as the~~ original issue discount (“~~Yield Differential~~OID”), ~~then~~ 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 B A Term Loans shall ~~automatically~~ be increased by so that the ~~Yield Differential, effective upon the making~~ total yield in respect of such Incremental Term Loans ~~and~~ is no more than 0.50% higher than the total yield for the existing Tranche A Term Loans (v) provided that any increase in yield to any existing Term Loans required due to the ~~extent~~ 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 ~~terms of the~~ applicable existing Term Loans); (ix) all Incremental Term Loans ~~are inconsistent~~ and any Revolving Loans made in respect of Incremental Revolving Commitments shall rank pari passu in right of payment and right of security in respect of the Collateral with the ~~terms set forth herein~~ Tranche A Term Loans and the Revolving Loans; (x) except as set forth in ~~clause~~ Section 2.25(a)(vi) and (~~i) through (iv) above~~viii), ~~such~~ all terms of any Incremental Term Facility, if not consistent with the applicable existing Term Facility, shall be reasonably satisfactory to the Administrative Agent~~. Any~~ ; 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; (xi) (A) any Incremental Revolving ~~Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit~~ Commitments ~~and shall be on terms identical to the existing Revolving Credit Commitments (~~and the Revolving Loans ~~thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender~~ in respect thereof shall ~~execute and deliver~~ be pursuant to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all terms hereof otherwise applicable to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement Revolving Facility and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving ~~Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing~~ Commitments shall become Revolving ~~Credit Lender’s participations hereunder in outstanding Letters of Credit such that,~~ Commitments under this Agreement after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.Facility Activation Notice;

Appears in 1 contract

Sources: Credit Agreement (Wolverine World Wide Inc /De/)

Incremental Facilities. (a) ~~The Borrower may,~~ Holdings may by written notice to the Applicable Administrative Agent ~~from time~~ elect to ~~time~~request (A) prior to the Maturity Date of the U.S. Dollar Revolving Credit Facility, ~~request~~ an increase to the existing U.S. Dollar Revolving Credit Commitments (any such increase, the “Incremental U.S. Dollar Revolving Commitments”), (B) prior to the Maturity Date of the Multicurrency Revolving Credit Facility, an increase to the existing Multicurrency Revolving Credit Commitments in (any such increase, the “Incremental Multicurrency Revolving Commitments”), (C) prior to the Maturity Date of the Term A Facility, the establishment of one or more new term loan A commitments (the “Incremental Term Loan A Commitments”), and/or (D) prior to the Maturity Date of the Term B Facility, the establishment of one or more new term loan B commitments (the “Incremental Term Loan B Commitments”), by an amount not in excess of $250,000,000 in the aggregate (such ~~that, after giving effect thereto~~amount, the ~~aggregate amount of~~ “Incremental Capacity”) and not less than $25,000,000 individually; provided that the Incremental U.S. Dollar Revolving Commitments, the Incremental Multicurrency Revolving Commitments ~~established at or prior to such time does~~ and the Incremental Term Loan A Commitments, collectively, shall not exceed $~~100,000,000~~100,000,000 in the aggregate. ~~Such~~ For purposes of this Section 2.14, any Incremental Term Loans that amortize at a rate greater than 1.0% per annum shall be deemed to be Incremental Term A Loans. Each such notice shall ~~set forth~~ specify (i) the ~~amount of~~ date (each, an “Increased Amount Date”) on which Holdings proposes that the Incremental U.S. Dollar Revolving Commitments, Incremental Multicurrency Revolving Commitments, Incremental Term Loan A Commitments ~~being requested (~~or Incremental Term Loan B Commitments, as applicable, shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Applicable Administrative Agent (or such shorter period of time as may be agreed to by the Applicable Administrative Agent in ~~minimum increments of $500,000 and a minimum amount of $5,000,000~~its sole discretion), (ii) the ~~date on~~ identity of each Lender or other Person, which must be an Eligible Assignee (each, an “Incremental U.S. Dollar Revolving Loan Lender”, “Incremental Multicurrency Revolving Loan Lender”, “Incremental Term Loan A Lender” or “Incremental Term Loan B Lender”, as applicable) to whom Holdings proposes any portion of such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as the Administrative Agent shall agree))U.S. Dollar Revolving Commitments, ~~(iii) whether such~~ Incremental ~~Commitments are~~ Multicurrency Revolving Commitments, Incremental ~~Revolving Credit~~ Term Loan A Commitments or Incremental Term Loan ~~Commitments~~ B Commitments, as applicable, be allocated and the amounts of such allocations, (iii) in the case of Incremental Term Loan A Commitments, whether the loans to be made with respect thereto will be made in U.S. Dollars or Canadian Dollars and (iv) in the case of ~~any request for~~ Incremental Term Loan A Commitments, whether ~~such~~ the Borrower with respect thereto will be Holdings or SpinCo. Any Lender approached to provide all or a portion of the Incremental U.S. Dollar Revolving Commitments, Incremental Multicurrency Revolving Commitments Incremental Term Loan A Commitments ~~are commitments to make additional~~ or Incremental Term ~~Loans of any then outstanding Class~~ Loan B Commitments may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion) , to provide an Incremental U.S. Dollar Revolving Commitment, an Incremental Multicurrency Revolving Commitment, an Incremental Term Loan A Commitment or ~~any Additional Lender. (b) It~~ an Incremental Term Loan B Commitment. Such Incremental U.S. Dollar Revolving Commitments, Incremental Multicurrency Revolving Commitments Incremental Term Loan A Commitments or Incremental Term Loan B Commitments shall ~~be a condition precedent to the effectiveness~~ become effective as of ~~any Incremental Commitment~~ such Increased Amount Date; provided that (i) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such Incremental U.S. Dollar Revolving Commitments, Incremental Multicurrency Revolving Commitments, Incremental Term Loan A Commitments or Incremental Term Loan B Commitments, as applicable, and the extensions of credit to be made thereunder on such date; (ii) both before and immediately after giving effect to the making of any Incremental Term A Loans or Incremental Term B Loans, each of the conditions set forth in Section 4.03 shall be satisfied; (iii) Holdings shall be in pro forma compliance with each of the covenants set forth in Section 7.11 and the Senior Secured Leverage Ratio of Holdings shall be less than or equal to 2.50:1.00, in each case as of the last day of the most recently ended fiscal quarter and as of the Increased Amount Date (assuming for such purpose that the relevant ratios shall have been calculated taking into account all Consolidated Funded Indebtedness outstanding on such date, Consolidated EBITDA as of the most recently completed Measurement Period and the Consolidated Cash Interest Expense for such Measurement Period (assuming for such purpose that such Consolidated Funded Indebtedness had been outstanding on the first day of and through the end of such Measurement Period and measuring such ratios against those for the most recently ended period in question set forth in Section 7.11 (as applicable))) after giving effect to such Incremental U.S. Dollar Revolving Commitments, Incremental Multicurrency Revolving Commitments Incremental Term Loan A Commitments or Incremental Term Loan B Commitments and the extensions of credit to be made thereunder on such date, as applicable; (iv) the Incremental U.S. Dollar Revolving Commitments, Incremental Multicurrency Revolving Commitments Incremental Term Loan A Commitments or Incremental Term Loan B Commitments, as applicable, shall be effected pursuant to one or more Incremental Joinder Agreements executed and delivered by Holdings, SpinCo or the applicable Revolving Credit Borrowers, as applicable, the Incremental U.S. Dollar Revolving Loan Lender(s), the Incremental Multicurrency Revolving Loan Lender(s), the Incremental Term Loan A Lender(s) or the Incremental Term Loan B Lender(s), as applicable, and the Applicable Administrative Agent, each of which shall be recorded in the Register (and each Incremental U.S. Dollar Revolving Loan Lender, Incremental Multicurrency Revolving Loan Lender, Incremental Term Loan A Lender and Incremental Term Loan B Lender shall be subject to the requirements set forth in Section 3.01); (v) the Incremental Facilities shall rank pari passu in right of security with the Revolving Credit Facilities, the Term A Facility and the Term B Facility, (vi) all reasonable fees and out-of-pocket expenses actually incurred owing to the Applicable Administrative Agent and the Lenders (other than a Defaulting Lender) in respect of the Incremental U.S. Dollar Revolving Commitments, Incremental Multicurrency Revolving Commitments, Incremental Term Loan A Commitments and Incremental Term Loan B Commitments shall have been paid, (vii) the incurrence of Incremental Term Loans, Incremental Revolving Commitments and/or Incremental Revolving Loans shall be permitted at such time under the Existing Senior Subordinated Notes Documents, the SpinCo Notes Documents and any other indenture, loan agreement or other material agreement to which Holdings, SpinCo or any of their respective Subsidiaries is a party or by which it or any of its property or assets is bound or to which it may be subject and (viii) Holdings shall deliver or cause to be delivered legal opinions, officer’s certificates and such other documents (including modifications of Mortgages and title insurance endorsements or policies) reasonably requested by the Applicable Administrative Agent in connection with any such transaction. Any Incremental Term A Loans made on an Increased Amount Date shall be designated a separate series (a “Series”) of Incremental Term A Loans for all purposes of this Agreement or, if made on terms identical to the Term A Loans, may constitute a part of the Term A Facility, and any Incremental Term B Loans made on an Increased Amount Date shall be designated a separate Series of Incremental Term B Loans for all purposes of this Agreement or, if made on terms identical to the Term B Loans, may constitute a part of the Term B Facility. (b) On any Increased Amount Date on which Incremental U.S. Dollar Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing U.S. Dollar Revolving Credit Lenders shall assign to each of the Incremental U.S. Dollar Revolving Loan Lenders, and each of the Incremental U.S. Dollar Revolving Loan Lenders shall purchase from each of the existing U.S. Dollar Revolving Loan Lenders, at the principal amount thereof (together with accrued interest), such interests in the U.S. Dollar 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 U.S. Dollar Revolving Loans will be held by existing U.S. Dollar Revolving Loan Lenders and Incremental U.S. Dollar Revolving Loan Lenders ratably in accordance with their U.S. Dollar Revolving Credit Commitments after giving effect to the addition of such Incremental U.S. Dollar Revolving Commitments to the Revolving Credit Commitments, (ii) ~~the Total Leverage Ratio~~each Incremental U.S. Dollar Revolving Commitment shall be deemed for all purposes a U.S. Dollar Revolving Commitment and each Loan made thereunder (an “Incremental U.S. Dollar Revolving Loan”) shall be deemed, ~~determined on~~ for all purposes, a ~~Pro Forma Basis (assuming that all Incremental Commitments have been fully funded~~ U.S. Dollar Revolving Loan and ~~without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00,~~ (iii) each Incremental U.S. Dollar Revolving Loan Lender shall become a Lender with respect to the ~~representations~~ Incremental U.S. Dollar Revolving Commitment and ~~warranties set forth~~ all matters relating thereto. (c) On any Increased Amount Date on which Incremental Multicurrency Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Multicurrency Revolving Credit Lenders shall assign to each of the Incremental Multicurrency Revolving Loan Lenders, and each of the Incremental Multicurrency Revolving Loan Lenders shall purchase from each of the existing Multicurrency Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in ~~Article III and in each other Loan Document~~ the Multicurrency Revolving Credit Loans outstanding on such Increased Amount Date as shall be ~~true~~ necessary in order that, after giving effect to all such assignments and correct in all material respects (or in all respects, if qualified as to materiality) on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates to another datepurchases, such ~~other date)~~ Multicurrency Revolving Credit Loans will be held by existing Multicurrency Revolving Credit Lenders and ~~(iv)~~ Incremental Multicurrency Revolving Loan Lenders ratably in accordance with their Multicurrency Revolving Credit Commitments after giving effect to the ~~terms~~ addition of such Incremental Multicurrency Revolving Commitments to the Revolving Credit Commitments, (ii) each Incremental Multicurrency Revolving Commitment shall be deemed for all purposes a Multicurrency Revolving Credit Commitment and each Loan made thereunder (an “Incremental Multicurrency Revolving Loan”) shall be deemed, for all purposes, a Multicurrency Revolving Credit Loan and (iii) each Incremental Multicurrency Revolving Loan Lender shall become a Lender with respect to the Incremental Multicurrency Revolving Commitment and all matters relating thereto. (d) On any Increased Amount Date on which any Incremental Term Loan A Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan A Lender of any Series shall make a Loan to Holdings or SpinCo (an “Incremental Term A Loan”) in an amount equal to its Incremental Term Loan A Commitment of such Series and (ii) each Incremental Term Loan A Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan A Commitment of such Series and the Incremental Term A Loans of such Series made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Term Loan B Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Incremental Term Loan B Lender of any Series shall make a Loan to Holdings (an “Incremental Term B Loan” and, together with the Incremental Term A Loans, the “Incremental Term Loans”) in an amount equal to its Incremental Term Loan B Commitment of such Series and (ii) each Incremental Term Loan B Lender of any Series shall become a Lender hereunder with respect to the Incremental Term Loan B Commitment of such Series and the Incremental Term B Loans of such Series made pursuant thereto. (f) The Applicable Administrative Agent shall notify the Lenders promptly upon receipt of Holdings’ notice of each Increased Amount Date and in respect thereof (i) the Incremental Revolving Commitments and the Incremental Revolving Loan Lenders, the Series of Incremental Term Loan A Commitments and the Incremental Term ~~Loans~~ Loan A Lenders of such Series or the Series of Incremental Term Loan B Commitments and the Incremental Term Loan B Lenders of such Series, as applicable and (ii) in the case of each notice to any applicable Revolving ~~Loans thereunder shall comply with~~ Credit Lender, the respective interests in such Revolving Credit Lender’s Revolving Credit Loans, in each case subject to the assignments contemplated by this Section ~~2.25(c)~~2.14. (cg) Except as otherwise provided herein, the terms and documentation in respect of any Incremental Term A Loans and Incremental Term Loan A Commitments shall be ~~established pursuant~~ reasonably satisfactory to ~~an amendment (an “~~Holdings, the Applicable Administrative Agent and the Incremental ~~Assumption Agreement”) relating to this Agreement. The~~ Term Loan A Lenders; provided that the terms and provisions of the Incremental Term A Loans and Incremental Term Loan A Commitments of any Series shall ~~be determined~~ be, except as otherwise set forth herein or as otherwise agreed by Holdings, the ~~Borrower~~ Applicable Administrative Agent and the Incremental Term Loan A Lenders and set forth in the ~~applicable~~ Incremental ~~Assumption~~ Joinder Agreement~~; provided that~~ , identical to the Term A Loans. Notwithstanding the foregoing, (i) the ~~final maturity date~~ Weighted Average Life to Maturity of all Incremental Term A Loans of any ~~Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans~~ Series shall be no shorter than the ~~remaining average life~~ Weighted Average Life to ~~maturity~~ Maturity of ~~any then-outstanding Class of~~ the Term A Loans, (ii) the applicable Incremental Term Loan A Maturity Date of each Series shall be no shorter than the latest final maturity date of the Term A Loans, and (iii) the ~~Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect~~ yield applicable to ~~security and the borrower and guarantors of~~ the Incremental Term A Loans of each Series shall be determined by Holdings and the ~~same as the Borrower~~ applicable new Lenders and ~~Guarantors with respect to the Term Loans~~shall be set forth in each applicable Incremental Joinder Agreement; provided, ~~(iv)~~ however, that if the All-in Yield ~~on such~~ applicable to the Incremental Term A Loans exceeds the ~~initial~~ applicable All-in Yield of the ~~Tranche B~~ Term A Loans by more than ~~50 basis points (~~0.50% per annum, the ~~amount~~ applicable interest rate of ~~such excess above 50 basis points being referred to herein as~~ the ~~“Yield Differential”), then the Applicable Margin for the Tranche B~~ Term A Loans shall ~~automatically~~ be increased by (without further consent of the affected Lenders) so that the All-in Yield ~~Differential, effective upon the making of such Incremental Term Loans and (v)~~ applicable to ~~the extent the terms of~~ the Incremental Term A Loans ~~are inconsistent with~~ is not more than 0.50% per annum more than the All-in Yield applicable to the Term A Loans. (h) Except as otherwise provided herein, the terms ~~set forth herein (except as set forth~~ and documentation in ~~clause (i) through (iv) above), such terms~~ respect of any Incremental Term B Loans and Incremental Term Loan B Commitments shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental CommitmentsHoldings, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Applicable Administrative Agent and the ~~Borrower, to effect~~ Incremental Term Loan B Lenders; provided that the terms and provisions of ~~this Section 2.25~~the Incremental Term B Loans and Incremental Term Loan B Commitments of any Series shall be, ~~including any amendments necessary to establish~~ except as otherwise set forth herein or as otherwise agreed by Holdings, the Applicable Administrative Agent and the Incremental Term Loan ~~Commitments~~ B Lenders and set forth in the Incremental Joinder Agreement, identical to the Term B Loans. Notwithstanding the foregoing, (i) the Weighted Average Life to Maturity of all Incremental Term B Loans ~~as a new Class or tranche~~ of ~~Term Loans and such other technical amendments as may~~ any Series shall be ~~necessary or appropriate in~~ no shorter than the ~~reasonable opinion~~ Weighted Average Life to Maturity of the ~~Administrative Agent~~ Term B Loans, (ii) the applicable Incremental Term Loan B Maturity Date of each Series shall be no shorter than the latest final maturity date of the Term B Loans, and (iii) the yield applicable to the Incremental Term B Loans of each Series shall be determined by Holdings and the ~~Borrower in connection with the establishment of such~~ applicable new ~~Class or tranche,~~ Lenders and shall be set forth in each ~~case on terms consistent with this Section 2.25.~~ applicable Incremental Joinder Agreement; provided, however, that if the All-in Yield applicable to the Incremental Term B Loans exceeds the applicable All-in Yield of the Term B Loans by more than 0.50% per annum, the applicable interest rate of the Term B Loans shall be increased (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage consent of the ~~aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender~~affected Lenders) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the ~~Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect~~ All-in Yield applicable to the ~~increase~~ Incremental Term B Loans is not more than 0.50% per annum more than the All-in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply Yield applicable to ~~the transactions effected pursuant to the immediately preceding sentence.~~th

Appears in 1 contract

Sources: Credit Agreement (Acco Brands Corp)

Incremental Facilities. (a) ~~The~~ Borrower Representative may, by written notice to ~~the Administrative~~ Agent at any time and from time to ~~time, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or~~ time prior to ~~such time does not exceed $100,000,000. Such notice shall set forth (i)~~ the ~~amount~~ fifth anniversary of the ~~Incremental~~ Restatement Date, seek new (or an increase to the existing) Commitments ~~being requested (which shall be~~ of up to $100,000,000 in ~~minimum increments of $500,000 and~~ a minimum amount of no less than $~~5,000,000~~10,000,000 (an “Incremental Term Loan Commitment”); provided, that, on a pro forma basis after giving effect to the loans to be borrowed under the Incremental Term Loan Commitment (ii“Incremental Term Loans”) and the ~~date on which such Incremental Commitments are requested to become effective (which shall not~~ proposed use of proceeds thereof, the ARR Ratio will be less than ~~10 Business Days nor more than 60 days after~~ or equal to 1.50x, calculated on a pro forma basis, and based on the ~~date of such notice (or such longer or shorter period as the Administrative Agent shall agree)), (iii) whether such Incremental Commitments~~ most recent fiscal quarter for which financial statements are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lenderavailable. (b) It Each such notice shall ~~be a condition precedent to the effectiveness of any Incremental Commitment that~~ (i) be delivered at a time when no Default or Event of Default ~~shall have~~ has occurred and is continuing or would result therefrom (and the effectiveness of the Incremental Term Loan Commitment shall be ~~continuing immediately prior~~ subject to no Default or ~~immediately after giving effect to~~ Event of Default existing as of the time that such Incremental ~~Commitments~~Term Loan Commitment becomes effective), and (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming~~ certify that ~~all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iii)~~ the representations and warranties of Borrowers and the other Loan Parties set forth in ~~Article III~~ the Loan Documents are true and correct in ~~each other Loan Document~~ all material respects with the same effect as if then made (except to the extent such representations and warranties expressly relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects ~~(or in all respects, if qualified as to materiality) on and~~ as of ~~the date~~ such ~~Incremental Commitments become effective (or if such representation and warranty relates to another date, such other~~ earlier date) and ~~(iv) the terms of~~ further certifying that such ~~Incremental Commitments and the~~ Incremental Term Loans ~~or Incremental Revolving Loans thereunder shall comply with Section 2.25(c)~~when borrowed will constitute “senior debt”. (c) Incremental ~~Commitments~~ Term Loans shall ~~be established pursuant~~ amortize on a schedule corresponding to ~~an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms~~ the amortization schedule required of the existing Term Loans until the maturity date of such existing Term Loans. (d) To the extent that the initial “yield” (determined by taking into account applicable interest rate margins, floors, upfront fees and original issue discount paid, but excluding agency, arrangement, structuring and underwriting fees) on any Incremental Term Loans exceeds the initial “yield” (determined by taking into account applicable interest rate margins, including interest paid-in-kind, floors, upfront fees and original issue discount paid, but excluding agency, arrangement, structuring and underwriting fees) applicable to the Term Loans immediately before giving effect to such Incremental Term Loans, by more than 50 basis points, the applicable margin otherwise in effect for the Term Loans immediately before giving effect to such increase, shall be ~~determined~~ increased by the ~~Borrower~~ amount of such differential in excess of 50 basis points. (e) Other than with respect to pricing, margins, interest rate floors, fees and ~~the Incremental Term Lenders~~ original issue discount and ~~set forth in the applicable Incremental Assumption Agreement; provided that (i) the final~~ maturity date (which may be later but not before), the terms and provisions of any Incremental Term Loans shall be ~~no earlier than~~ substantially identical to the ~~Latest Maturity Date~~Term Loans existing immediately prior to giving effect to any such Incremental Term Loan. Any Incremental Term Loans (i) shall rank pari passu in right of payment and pari passu or junior in right of security with the Term Loans outstanding immediately prior to giving effect to such Incremental Term Loans, or shall be unsecured, (ii) shall not be secured by any asset of Holdings or any of its Subsidiaries that is not also collateral securing the ~~average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of~~ existing Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall not be ~~the same as the Borrower and Guarantors~~ guaranteed by any person other than a Loan Party with respect to the existing Term Loans, (iv) if required by Agent or Required Lenders, shall be subject to an intercreditor agreement the ~~All-~~terms of which are reasonably satisfactory to Required Lenders, so long as the Required Lenders’ approval is not unreasonably withheld, and (v) shall not be entitled to voluntary or mandatory prepayments except on a pari passu basis with then existing Term Loans. (f) It is agreed and understood that each Lender shall have the right to participate in ~~Yield on~~ its pro rata share of any requested Incremental Term Loan Commitment, provided, that no Lender shall be obligated to participate in any such Incremental Term ~~Loans exceeds~~ Loan Commitment. If any existing Lender elects not to provide the ~~initial All-in Yield~~ requested Incremental Term Loan Commitment pursuant to an exercise of ~~the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~their respective ratable participation rights, then (i) the ~~Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making~~ addition of ~~such~~ any Incremental Term ~~Loans and~~ Loan Commitment to the Credit Agreement shall require approval of Required Lenders, (vii) to the extent the ~~terms~~ Incremental Term Loan Commitment is so approved, ▇▇▇▇▇▇▇ shall have the right of first refusal to participate on a greater than pro rata basis in any portion of such Incremental Term Loan Commitment as to which existing Lenders did not exercise ratable participation rights, and (iii) to the extent any lenders that are not existing Lenders under the Credit Agreement propose to participate in such Incremental Term Loan Commitment, any such lenders shall be reasonably acceptable to Agent and Required Lenders (such consent not to be unreasonably withheld, conditioned or delayed). (g) Proceeds of the Incremental Term Loans ~~are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall~~ will be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing used for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel working capital and other ~~documentation consistent with the conditions set forth in Section 4.02~~general corporate purposes, ~~all~~ to the extent ~~reasonably requested~~ not prohibited by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Agreement mayLoan Documents, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.25, including any amendments necessary to establish provided that the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall ~~upon the effectiveness of such Incremental Revolving Credit Commitment~~ not be ~~prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according~~ used to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and refinance any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentencethen-outstanding Term Loans.

Appears in 1 contract

Sources: Credit and Guaranty Agreement (FiscalNote Holdings, Inc.)

Incremental Facilities. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments in an amount such that, after giving effect thereto, the ~~aggregate amount of~~ Aggregate Incremental ~~Commitments established at or prior to such time~~ Amount does not exceed ~~$100,000,000~~the Incremental Cap. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $~~500,000~~ 1,000,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 ten (10) Business Days nor more than 60 sixty (60) days after the date of such notice (or such longer or shorter ~~period~~ periods as the Administrative Agent shall agree)), ) and (iii) ~~whether such Incremental Commitments are Incremental Revolving Credit Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments,~~ whether such Incremental Term Loan Commitments are commitments to make ~~additional~~ Term Loans of ~~any then outstanding~~ the same Class as the Term Loans or commitments to make Term Loans of a ~~new Class~~different Class than the Term Loans. The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) or any Additional Lender. (b) It shall be a condition precedent to the effectiveness of any Incremental Term Loan Commitment and the incurrence of the Incremental Term Loans that (i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after giving effect to such Incremental ~~Commitments~~Term Loan Commitment or the incurrence of such Incremental Term Loan, as applicable, (ii) the ~~Total~~ Borrower would be in compliance with the Financial Covenants and the Net First Lien Leverage ~~Ratio~~Ratio shall not exceed 3.25:1.00, in each case determined on a an Incremental Pro Forma Basis ~~(assuming that all Incremental Commitments~~ as of the last day of the most recently ended fiscal quarter for which financial statements have been ~~fully funded and without netting the proceeds of any Incremental Loans~~delivered pursuant to Section 5.04(a) or 5.04(b)~~, shall not exceed 2.75:1.00~~, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects ~~(or in all respects, if qualified as to materiality)~~ on and as of the date such Incremental Term Loan Commitments become effective ~~(or if such representation~~ and ~~warranty relates to another date, such other date)~~ the Incremental Term Loans are incurred and (iv) the terms of such Incremental Term Loan Commitments and the Incremental ~~Term Loans or Incremental Revolving~~ Loans thereunder shall comply with Section ~~2.25(c~~2.22(c). (c) ~~Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement.~~ The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in ~~the applicable Incremental Assumption Agreement~~an Additional Credit Extension Amendment; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity ~~Date~~Date in effect at the time, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of ~~any then-outstanding Class of~~ the Term Loans, (iii) the Incremental Term Loans will rank pari passu ~~with (or junior to) the Tranche B Term Loans~~ in right of payment and with respect to security with the Term Loans and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the ~~Tranche B~~ Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin (at each level) for the ~~Tranche B~~ Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder). (d) In connection with any Incremental Term Loan Commitments, the Borrower, the Administrative Agent and each applicable Incremental Term Loan Lender shall execute and deliver to the Administrative Agent an ~~Incremental Assumption Agreement providing for such Incremental Commitments,~~ Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of each Incremental Term Loan Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each ~~Incremental Assumption Agreement~~Additional Credit Extension Amendment. Any ~~Incremental Assumption Agreement~~ Additional Credit Extension Amendment may, without consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section ~~2.25~~2.22, including any amendments necessary to establish the Incremental Term ~~Loan Commitments and~~ Loans and/or Incremental Term ~~Loans~~ Commitments as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section ~~2.25~~2.22. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Credit Agreement (School Specialty Inc)

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

Appears in 1 contract

Sources: Credit Agreement (Graphic Packaging Corp)

Incremental Facilities. (a) ~~The~~ Subject to Section 2.11(b), the Borrower ~~may,~~ may by written notice to Agent elect to request the ~~Administrative Agent from time to time~~establishment of one or more Incremental Term Loan commitments (the “Incremental Term Loan Commitments”), ~~request Incremental Commitments~~ in an ~~amount such that, after giving effect thereto, the~~ aggregate amount of ~~Incremental Commitments established at or prior~~ up to $70,000,000. Each such ~~time does not exceed $100,000,000. Such~~ notice shall ~~set forth~~ specify the date (ian “Increased Amount Date”) on which the ~~amount of~~ Borrower proposes that the Incremental Term Loan Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than 30 days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after~~ the ~~date~~ Agent. The opportunity to commit to provide all or a portion of ~~such notice (or such longer or shorter period as~~ the ~~Administrative Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments or~~ Incremental Term Loan ~~Commitments and (iv) in~~ Commitment shall be offered by the ~~case of~~ Borrower to any ~~request for~~ Eligible Incremental Lenders. To the extent any Eligible Incremental Lenders have provided a commitment to provide such Incremental Term Loan ~~Commitments~~Commitment, ~~whether~~ the Borrower shall provide a copy of such commitment letter to the Agent for distribution to the existing Lenders and offer the existing Lenders the opportunity to provide such Incremental Term Loan Commitment on the same terms as set forth in such commitment letter (the date the Agent receives such commitment letter, the “Notice Date”). If the existing Lenders have not agreed in writing to provide such Incremental Term Loan Commitment within 15 days of the Notice Date, then the Eligible Incremental Lenders may provide the Incremental Term Loan Commitment on the terms of such commitment letter and subject to this Section 2.11. Any existing Lender approached to provide all or a portion of such Incremental Term Loan Commitments ~~are commitments to make additional Term Loans of any then outstanding Class~~ may elect or ~~commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate~~ decline, in its sole discretion~~) or any Additional Lender~~, to provide such Incremental Term Loan Commitment. (b) It Such Incremental Term Loan Commitments shall ~~be a condition precedent~~ become effective, as of such Increased Amount Date, subject to the ~~effectiveness~~ satisfaction of ~~any Incremental Commitment that~~ each of the following conditions: (i) the Lenders have funded 100% of the aggregate amount of the Term Loan B Commitments of the Lenders; (ii) the Agent has obtained the commitment of one or more Incremental Term Loan Lenders to provide the applicable Incremental Term Loan and any such Incremental Term Loan Lenders, the Borrower and the Agent have signed an amendment to this Agreement pursuant to which such Incremental Term Loan Lenders agree to make, subject to the terms of this Agreement, a term loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment and to otherwise evidence such Incremental Term Loan, in form and substance reasonably satisfactory to the Agent (each, a “Joinder Agreement”); (iii) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to or immediately after giving effect to~~ exist on such ~~Incremental Commitments,~~ Increased Amount Date; (ii) the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded and without netting the proceeds of any Incremental Loans), shall not exceed 2.75:1.00, (iiiiv) the representations and warranties ~~set forth~~ of the Credit Parties contained in ~~Article III~~ this Agreement and ~~in each~~ the other Loan ~~Document~~ Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all ~~respects~~respects subject to such qualification) as of such Increased Amount Date to the same extent as though made on and as of that date (both before and immediately after giving effect to such Loan), if except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified as to “materiality” or “Material Adverse Effect” in the text thereof, which representations and warranties shall be true and correct in all respects subject to such qualification) on and as of ~~the date~~ such ~~Incremental Commitments become effective~~ earlier date; and (~~or if such representation and warranty relates to another date, such other date) and (iv~~v) the ~~terms of such Incremental Commitments and~~ Borrower shall have reached agreement with the lenders making the Incremental Term ~~Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c).~~ Loan (~~c) Incremental Commitments shall be established pursuant to an amendment (an~~ the “Incremental ~~Assumption Agreement~~Term Loan Lenders”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the ~~Term Loans, (iv) if the All-in Yield on~~ interest margins applicable to such Incremental Term ~~Loans exceeds~~ Loan (which interest margins may be higher than, equal to, or lower than the ~~initial All-~~interest margins applicable to the Term Loan set forth in ~~Yield~~ this Agreement immediately prior to the date of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term ~~Loans~~ Loan, as applicable) and ~~(v)~~ shall have communicated the amount of such interest margins to the ~~extent~~ Agent. Anything to the ~~terms~~ contrary contained herein notwithstanding, if the all in yield (including interest margins, interest floors, original issue discount, closing fees or other similar yield related discounts based on an assumed four-year to life maturity, but excluding any arrangement, underwriting or similar fees that are not shared with all of the 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. (c) The Incremental Term Loan Lender shall make an Incremental Term Loan subject to the satisfaction of each of the following conditions: (i) 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 $20,000,000 and integral multiples of $1,000,000 above such amount (except, in each case, such minimum amount and integral multiples amount shall not apply when the Borrower uses all of the Incremental Term ~~Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above),~~ Loan Commitments available at such terms shall be reasonably satisfactory to the Administrative Agent. Any Incremental Revolving Credit Commitment (and the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereundertime). (d) ~~In connection with~~ On any Increased Amount Date on which any Incremental ~~Commitments~~Term Loan Commitments of any tranche are effective, subject to the ~~Borrower~~satisfaction of the foregoing terms and conditions, ~~the Administrative Agent and~~ each ~~applicable~~ Incremental Term Loan Lender shall ~~execute and deliver~~ become a Lender hereunder with respect to the ~~Administrative Agent an~~ Incremental ~~Assumption Agreement providing for such Incremental Commitments,~~ Term Loan Commitment and ~~such other documentation as the Administrative Agent shall reasonably specify to evidence~~ the Incremental ~~Commitment of each Incremental Lender~~Term Loans made pursuant thereto. Any Incremental ~~Assumption Agreement may include conditions~~ Term Loans made on an Increased Amount Date shall be designated a separate Class for ~~delivery~~ all purposes of ~~opinions~~ this Agreement. (e) The terms and provisions of ~~counsel~~ the Incremental Term Loans and ~~other documentation consistent with the conditions~~ Incremental Term Loan Commitments shall be, except as otherwise set forth herein or in ~~Section 4.02~~a Joinder Agreement, ~~all~~ identical to the ~~extent reasonably requested by~~ Term Loan immediately prior to the ~~Administrative Agent or the other parties to~~ making of such Incremental ~~Assumption Agreement~~Term Loan. ~~The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption~~ Each such Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of ~~the Administrative Agent and the Borrower~~Agent, to effect the ~~provisions~~ provision of this Section ~~2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and~~ 2.11. All Incremental Term Loans as shall be secured on a ~~new Class or tranche of~~ pari passu basis with the Term ~~Loans and such other technical amendments as may~~ Loans, shall not be ~~necessary or appropriate in the reasonable opinion~~ secured by a Lien on any assets of the ~~Administrative Agent~~ Borrower or any Guarantor not constituting Collateral and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act shall not be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred guaranteed by any ~~Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and~~ person other than the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceGuarantors.

Appears in 1 contract

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

Incremental Facilities. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from~~ elect to request the establishment of one or more New Term Loan Commitments by an aggregate amount following the 20132017 Refinancing Amendment Effective Date not in excess of the sum of (x) such amount so long as, at the time ~~to time, request Incremental Commitments in an amount such that, after giving effect thereto~~of the incurrence of the Indebtedness thereunder, the ~~aggregate amount of Incremental Commitments established at or prior to such time does~~ Senior SecuredFirst Lien Leverage Ratio shall not exceed 3.54.00:1.00 on a Pro Forma Basis plus (y) $~~100,000,000~~200,000,000. ~~Such notice~~ For the avoidance of doubt, (A) in the event that the Borrower exercises its right to incur Incremental Term Loans pursuant to this Section 2.14 on a date on which the Senior SecuredFirst Lien Leverage Ratio is no greater than 3.54.00:1.00 on a Pro Forma Basis, such Incremental Term Loans shall ~~set forth~~ be allocated solely to clause (ix) of the foregoing limitation and shall not reduce the $200,000,000 amount provided for in clause (y) of such limitation, and (B) in the event that the Borrower exercises its right to incur Incremental Term Loans on the basis of both clauses (x) and (y) of the foregoing limitation, the applicable ratio under clause (x) will not give effect to the incurrence of the portion of the Incremental Term Loans incurred in reliance on the basis of clause (y). Each such notice requesting New Term Loan Commitments ~~being requested~~ shall not be less than $10,000,000 individually. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Term Loan Commitments shall be effective, which shall be ~~in minimum increments of $500,000 and~~ a ~~minimum amount of $5,000,000), (ii)~~ date not less than ten Business Days after the date on which such ~~Incremental Commitments are requested~~ notice is delivered to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as~~ the Administrative ~~Agent shall agree)), (iii) whether such Incremental Commitments are Incremental Revolving Credit Commitments~~ Agent; provided that any Lender offered or ~~Incremental~~ approached to provide all or a portion of the New Term Loan Commitments ~~and (iv) in the case of any request for Incremental Term Loan Commitments~~may elect or decline, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion~~) or any Additional Lender. (b) It~~ , to provide a New Term Loan Commitment. Such New Term Loan Commitments shall ~~be a condition precedent to the effectiveness~~ become effective, as of ~~any Incremental Commitment~~ such Increased Amount Date; provided that (i) no Default or Event of Default shall ~~have occurred and be continuing immediately prior to~~ exist on such Increased Amount Date before or ~~immediately~~ after giving effect to such New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans, each of the conditions set forth in Sections 6.01(i) and 6.06 shall be satisfied, (it being understood that all references to “the date of such Credit Event” or similar language in such Sections shall be deemed to refer to the Increased Amount Date); provided that if the Lenders providing the applicable Incremental Term Loans so agree, in connection with a Borrowing of such Incremental Term Loans the proceeds of which are used to fund a PermittedLimited Conditionality Acquisition, (x) the only representations and warranties under Section 6.06 the making and accuracy of which will be a condition to the borrowing of such Incremental Term Loans will be limited to the Specified Representations and such of the representations and warranties made by seller and target in the relevant acquisition agreementSubject Acquisition Agreement with the relevant Credit Party as are material to the interests of the Lenders, but only to the extent that such Credit Party has the right to terminate its obligations (or to refuse to consummate the acquisition) under the relevant acquisition agreement as a result of a breach of such representations in such acquisition agreement and (y) any condition that a Default or Event of Default not be occurring or continuing (or any substantially similar condition) may be limited to the time of signing of the relevant acquisition agreement and not be required at the time of Borrowing of such Incremental Term Loans; (iii) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.04(g); (iv) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable; and (v) the 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. 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. (b) [Intentionally Omitted] (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 New Term Loan Lender with a New Term Loan Commitment of any Series shall make a New Term Loan to the Borrower 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, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to the existing Term Loans; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the final maturity of the Term Loans outstanding on the Increased Amount Date with respect to such New Term Loans and the mandatory prepayment and other payment rights (other than scheduled amortization) of the New Term Loans and the existing Term Loans shall be identical, (ii) the ~~Total Leverage Ratio, determined on a Pro Forma Basis (assuming that~~ Weighted Average Life to Maturity of all ~~Incremental Commitments have been fully funded and without netting the proceeds~~ New Term Loans of any ~~Incremental Loans),~~ Series shall ~~not exceed 2.75:1.00~~be no shorter than the Weighted Average Life to Maturity of the Term Loans outstanding on the Increased Amount Date, (iii) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects, if qualified as to materiality) on and as rate of ~~the date such Incremental Commitments become effective (or if such representation and warranty relates to another date, such other date) and (iv) the terms of such Incremental Commitments~~ interest and the ~~Incremental~~ amortization schedule applicable to the New Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of ~~the Incremental Term Loans~~ each Series shall be determined by the Borrower and the ~~Incremental Term~~ applicable new Lenders and shall be set forth in ~~the~~ each applicable ~~Incremental Assumption~~ Joinder Agreement; provided that ~~(i)~~ in the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if event that the All-in In Yield ~~on such Incremental~~ applicable to any New Term Loans incurred during the 1812 month period following the Closing2017 Refinancing Amendment Effective Date exceeds the ~~initial~~ All-in In Yield of the ~~Tranche B~~ Term Loans outstanding as of the Increased Amount Date by more than 50 basis ~~points (~~points, then the ~~amount~~ interest rate margins for such Term Loans outstanding as of the Increased Amount Date shall be increased to the extent necessary so that the All-In Yield of such ~~excess above~~ Term Loans is equal to the All-In Yield of such New Term Loans minus 50 basis points ~~being referred~~ and (iv) all other terms applicable to ~~herein as~~ the ~~“Yield Differential”), then~~ New Term Loans of each Series that differ from the ~~Applicable Margin for the Tranche B~~ existing Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans and (v) to the extent the terms of the Incremental Term Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (iv) above), such terms shall be reasonably ~~satisfactory~~ acceptable to the Administrative ~~Agent. Any Incremental Revolving Credit Commitment~~ Agent (~~and~~ as evidenced by its execution of the Incremental Revolving Loans thereunder) shall be implemented as an increase to the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunderapplicable Joinder Agreement). (de) In connection with any Incremental Commitments, the Borrower, the Administrative Agent and each applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Any Incremental Assumption Each Joinder Agreement may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the ~~reasonable~~ opinion of the Administrative ~~Agent and the Borrower~~Agent, to effect the ~~provisions~~ provision of this Section 2.25, including any amendments necessary to establish the Incremental Term Loan Commitments and Incremental Term Loans as a new Class or tranche of Term Loans and such other technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.252.14. (e) Upon each increase in the Revolving Credit Commitments pursuant to this Section ‎2.25, each Revolving Credit Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Revolving Credit Lender in respect of such increase, and each such Incremental Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such existing Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Incremental Revolving Credit Lender) will equal its Revolving Credit Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall upon the effectiveness of such Incremental Revolving Credit Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages (after giving effect to the increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.

Appears in 1 contract

Sources: Refinancing Amendment and Successor Administrative Agent Agreement (MRC Global Inc.)

Incremental Facilities. (a) The Borrower ~~may~~may at any time or from time to time after the Effective Date, by ~~written~~ notice to the Administrative ~~Agent from time to time~~Agent, request Incremental Commitments in an amount such that, after giving effect thereto, the aggregate amount of Incremental Commitments established at or prior to such time does not exceed $100,000,000. Such notice shall set forth (i) one or more additional term loans (the “Incremental Term Loans”) or (ii) one or more increases in the amount of the existing Revolving Commitments on the same terms as the existing Revolving Commitments (each such increase, an “Incremental ~~Commitments being requested~~ Revolving Commitment” and, together with the Incremental Term Loans, the “Incremental Facilities”); provided that (x) both at the time of any such request and upon the effectiveness of any Incremental Amendment (as defined below), no Default shall exist and (y) the Borrower shall be in pro forma compliance with the covenants set forth in Sections 6.11 and 6.12 (determined as of the most recently ended fiscal quarter for which financial statements are available). Each Incremental Term Loan or Incremental Revolving Commitment, as applicable, shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount which shall be in minimum increments of $500,000 and a minimum amount of $5,000,000), (ii) the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice (or such longer or shorter period as reasonably approved by the Administrative Agent or that shall ~~agree~~constitute the remaining available amount of Incremental Facilities permitted to be established pursuant to the next sentence)). Notwithstanding anything to the contrary herein, ~~(iii) whether such~~ the sum of the aggregate initial principal amount of all Incremental ~~Commitments are~~ Term Loans and the aggregate initial amount of all Incremental Revolving ~~Credit~~ Commitments or Incremental Term Loan Commitments and (iv) in the case of any request for Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans of any then outstanding Class or commitments to make Term Loans of a new Class. The Borrower may seek Incremental Commitments from existing Lenders (each of which shall ~~be entitled to agree or decline to participate in its sole discretion) or any Additional Lender~~not exceed $200,000,000. (b) It The Incremental Facilities shall ~~be a condition precedent to~~ rank pari passu in right of payment and of security with the ~~effectiveness of any~~ Revolving Loans and the Term A Loans. The Incremental ~~Commitment that~~ Term Loans (i) ~~no Default or Event of Default~~ shall not mature earlier than the Term A Maturity Date and shall have ~~occurred~~ a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Term A Loans (except by virtue of amortization of or prepayment of the Term A Loans and ~~be continuing immediately~~ prepayments of scheduled amortization prior to ~~or immediately after giving effect to~~ such ~~Incremental Commitments~~date of determination), and (ii) ~~the Total Leverage Ratio, determined on a Pro Forma Basis (assuming that all Incremental Commitments have been fully funded~~ except as set forth above and ~~without netting the proceeds of any Incremental Loans)~~below, shall ~~not exceed 2.75:1.00,~~ be treated substantially the same as the Term A Loans (~~iii~~including with respect to mandatory and voluntary prepayments); provided that (x) the ~~representations~~ interest rates and ~~warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects~~ amortization schedule (~~or in all respects, if qualified as~~ subject to ~~materiality~~clause (i) ~~on and as of the date such Incremental Commitments become effective (or if such representation and warranty relates~~ above) applicable to another date, such other date) and (iv) the terms of such Incremental Commitments and the Incremental Term Loans or Incremental Revolving Loans thereunder shall comply with Section 2.25(c). (c) Incremental Commitments shall be established pursuant to an amendment (an “Incremental Assumption Agreement”) relating to this Agreement. The terms of the Incremental Term Loans shall be determined by the Borrower and the Incremental Term Lenders and set forth in the applicable Incremental Assumption Agreement; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date, (ii) the average life to maturity of the Incremental Term Loans shall be no shorter than the remaining average life to maturity of any then-outstanding Class of Term Loans, (iii) the Incremental Term Loans will rank pari passu with (or junior to) the Tranche B Term Loans in right of payment and with respect to security and the borrower and guarantors of the Incremental Term Loans shall be the same as the Borrower and Guarantors with respect to the Term Loans, (iv) if the All-in Yield on such Incremental Term Loans exceeds the initial All-in Yield of the Tranche B Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin for the Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of such Incremental Term Loans lenders thereof and (vy) to the extent ~~the~~ such terms of applicable to the Incremental Term Loans are ~~inconsistent~~ not consistent with the ~~terms set forth herein~~ then existing Term A Loans (except as ~~set forth in~~ permitted by the immediately preceding clause (~~i) through (iv) above~~x)), such terms shall be reasonably satisfactory to the Administrative Agent. (c) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Facility. ~~Any~~ Incremental Term Loans may be made, and Incremental Revolving ~~Credit Commitment~~ Commitments may be provided, by any existing Lender or by any other bank or other financial institution as determined by the Borrower (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Commitment if such consent would be required under Section 9.04(b) for an assignment of Loans ~~thereunder) shall be implemented~~ or Revolving Commitments, as ~~an increase~~ applicable, to ~~the Total Revolving Credit Commitments and shall be on terms identical to the existing Revolving Credit Commitments (and the Revolving Loans thereunder)~~such Lender or Additional Lender. (d) ~~In connection~~ Commitments in respect of Incremental Term Loans and Incremental Revolving Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment to be provided by an existing Lender with ~~any~~ a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental ~~Commitments~~Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, the Administrative Agent and each other applicable Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement providing for such Incremental Commitments, and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Any Incremental Assumption Agreement may include conditions for delivery of opinions of counsel and other documentation consistent with the conditions set forth in Section 4.02, all to the extent reasonably requested by the Administrative Agent or the other parties to such Incremental Assumption AgreementCredit Party. The ~~Administrative Agent shall promptly notify each Lender as to the effectiveness of each~~ Incremental ~~Assumption Agreement. Any Incremental Assumption Agreement~~ Amendment may, without the consent of any other ~~Lender~~Lenders, effect such amendments to this Agreement and the other ~~Loan~~ Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The making of any loans pursuant to any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section ~~2.25, including any amendments necessary to establish~~ 4.02 and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term ~~Loan~~ Loans and Incremental Revolving Commitments ~~and~~ for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans ~~as a new Class~~ or ~~tranche of Term Loans and such other technical amendments as may be necessary or appropriate~~ Incremental Revolving Commitments unless it so agrees in ~~the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Class or tranche, in each case on terms consistent with this Section 2.25~~its sole discretion. (e) Upon each increase in the Revolving ~~Credit~~ Commitments pursuant to this ~~Section ‎2.25~~Section, (i) each Revolving ~~Credit~~ Lender ~~with a Revolving Credit Commitment~~ immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving ~~Credit Lender~~ Commitment (each an “Incremental Revolving Commitment Lender”) in respect of such increase, and each such Incremental Revolving ~~Credit~~ Commitment Lender will automatically and without further act be deemed to have assumed, a portion of such ~~existing Revolving Credit~~ Lender’s ~~participations hereunder in outstanding Letters of Credit~~ LC Exposure and Swingline Exposure such that, after giving effect to each such deemed assignment and ~~assumption of participations~~assumption, ~~the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each~~ all Revolving Credit ~~Lender~~ Exposure hereunder is held ratably by the Revolving Lenders in proportion to their respective Revolving Commitments and (~~including each such Incremental Revolving Credit Lender~~ii) ~~will equal its Revolving Credit Percentage. If,~~ if on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall ~~upon~~ on or prior to the effectiveness of such Incremental Revolving ~~Credit~~ Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder ~~so that the Revolving Loans are thereafter held by the Revolving Credit Lenders according to their Revolving Credit Percentages~~ (~~after giving effect to the~~ reflecting such increase in Revolving ~~Credit~~ Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any ~~Revolving Credit~~ Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (f) This Section 2.21 shall supersede any provisions in Section 2.18 or 9.02 to the contrary.

Appears in 1 contract

Sources: Credit Agreement (SXC Health Solutions Corp.)

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

Appears in 1 contract

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

Common use of Incremental Facilities Clause in Contracts