Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18. (b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment. (c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees). (d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments. (e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (P10, Inc.)
Incremental Facilities. (a) The At any time and from time to time, subject to the terms and conditions set forth herein, the Initial Borrower may, on by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request to incur one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase increases in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Credit Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, or the “Incremental Loan CommitmentsFacilities”); provided, (that on the date of each increase that satisfies the terms such request and conditions of this except as otherwise provided below in Section 2.18, an “Approved Increase”2.20(c), by an aggregate amountupon the effectiveness of each Incremental Facility Amendment, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount no Default or Event of the proposed increaseDefault has occurred and is continuing or shall result therefrom, if any, to the existing Revolving Commitments or Term Loans, as applicable, and (ii) the date on which such increase shall become effective (the “Increase Effective Date”), representations and (iii) the identity of each Lender warranties made by any Loan Party in or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable pursuant to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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, being true and correct in the opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement material respects on and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness date as if made on and as of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provideddate, furtherexcept for representations and warranties expressly stated to relate to a specific earlier date, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to which case such Acquisition-Related Incremental Commitment, the specified representations and warranties shall be true and correct in all material respects as of such earlier date (provided, that in each case such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”). Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of the Incremental Facilities shall not exceed, at any time the greater of (i) $50.0 million and (ii) such amount as would not cause the Total Revolving Credit Commitments to exceed the Aggregate Borrowing Base by more than $50.0 million, in each case, as of the date of effectiveness of such Incremental Facility (after giving effect to any change in any Borrowing Base resulting from any acquisition or other transaction occurring substantially contemporaneously with such Incremental Facility). All Incremental Revolving Commitments shall be in an integral multiple of $1.0 million and in an aggregate principal amount that is not less than $5.0 million (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 respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related remaining availability in respect of the Incremental CommitmentFacilities.
(cb) The terms and provisions of Loans made pursuant to an Approved Increase Any Incremental Revolving Commitment shall be on terms identical to the terms Revolving Credit Commitments, including with respect to having the same Guarantors and provisions applicable to being secured by the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (same Collateral on a pari passu basis with all other thanObligations, and, for the avoidance of doubt, differences such Incremental Revolving Commitment shall be deemed a Revolving Credit Commitment pursuant to the applicable Incremental Facility 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 Revolving Credit Facility); provided, that the Applicable Margin and the Facility Fee Rate, in upfront fees)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 Facility Fee Rate of such Revolving Credit Commitments are identical to those of the Incremental Revolving Commitments. With the consent of each applicable Issuing Bank, a portion of any Incremental Revolving Commitment may increase the LC Sublimit. A portion designated by the Initial Borrower of up to 30% of any Incremental Revolving Commitment may increase the Canadian ABL Sublimit.
(dc) With Each notice from any Borrower pursuant to this Section 2.20 shall set forth the requested amount of the relevant Incremental Revolving Commitments. Any Additional Lenders that elect to extend Incremental Revolving Commitments shall be reasonably satisfactory to Holdings and the Initial Borrower, and (unless such Additional Lender is already a Lender or an Affiliate of a Lender) the Administrative Agent 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 Facility Amendment. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrowers, such Additional Lender or Additional Lenders and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders or any other Person other than Holdings, the Initial Borrower, the Administrative Agent and the Additional Lenders with respect to such Incremental Facility Amendment. The Lenders hereby irrevocably authorize the Administrative Agent to enter into Incremental Facility Amendments and, as appropriate, amendments to the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches in respect of the existing Revolving Credit Commitments and such technical amendments as may be necessary or appropriate in the opinion of the Administrative Agent, Holdings 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)). No Lender shall be obligated to provide any Incremental Revolving Credit Commitments, unless it so agrees. Commitments in respect of any Incremental Revolving Commitments shall become Commitments under this Agreement. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, be subject to (i) the payment in full of all fees and expenses owing to the Administrative Agent and the Additional Lenders in respect of such Incremental Facility, to the extent invoiced prior to such date, and (ii) the satisfaction or waiver on the date of the effectiveness of the Incremental Revolving Commitments thereunder (each, an “Incremental Facility Closing Date”) of (x) the representations and warranties made by any Advances Loan Party in or pursuant to the Loan Documents being true and correct in all material respects on and as of the Incremental Facility Closing Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (provided, that in each case such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”; provided, further, that, notwithstanding anything in this Section 2.20 or Section 4.2(a) to the contrary, in connection with the effectiveness of any Incremental Revolving Commitments being used to fund all or a portion of a Limited Conditionality Transaction or the funding of Revolving Credit Loans or other extensions of credit to fund such Limited Conditionality Transaction in an amount not to exceed the amount of such Incremental Revolving Commitments (a “Specified Extension of Credit”), the only representations and warranties that will be required to be true and correct in all material respects as a condition to effectiveness of such Incremental Revolving Commitments as of the applicable Incremental Facility Closing Date or as a condition to the funding of such Specified Extension of Credit as of the date thereof (the “Specified Incremental Facility Funding Date”) shall be (a) the Specified Representations and (b) with respect to a Permitted Acquisition or other Investment permitted under Section 6.7, such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Holdings or the Initial Borrower (or any Subsidiary of Holdings or the Initial Borrower) has the right to terminate the obligations of Holdings, the Initial Borrower or such Subsidiary under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and (y) no Event of Default having occurred and being continuing on the Incremental Facility Closing Date after giving effect to the Incremental Facility requested to be made on such date; provided, that notwithstanding anything in this Section 2.20 or Section 4.2(b) to the contrary, in the case of any Incremental Revolving Commitment being used to fund all or a portion of a Limited Conditionality Transaction, to the extent agreed to by the lenders and other investors providing such Incremental Facilities, the condition under this clause (ii)(y) or Section 2.20(a) to the effectiveness of such Incremental Revolving Commitment or under Section 4.2(b) to the making of any Specified Extension of Credit thereunder shall instead be no Specified Default having occurred and being continuing on the applicable Incremental Facility Closing Date or the applicable Specified Incremental Facility Funding Date, as the case may be, and after giving effect thereto. To the extent reasonably requested by the Administrative Agent, the effectiveness of an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary legal opinions with respect thereto, board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.1, with respect to the Borrowers and the Restricted Subsidiaries. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.20, each Revolving Credit Lender 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 Commitment (each an “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving 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 of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all each such assignments deemed assignment and purchasesassumption of participations, such Advances and participation interests the percentage of the aggregate outstanding participations hereunder in Letters of Credit will be held by each Revolving Pre-Increase Credit Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment. Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Initial Borrower, take any and all actions as may be reasonably necessary to ensure that, after giving effect to any Incremental Revolving Post-Increase Commitment, the outstanding Revolving Credit Loans are held by the Revolving Credit Lenders ratably in accordance with their Pro Rata Share respective Applicable Percentages. The foregoing may be accomplished at the discretion of such Class after giving effect to such Incremental the Administrative Agent, following consultation with the Initial Borrower, (A) by requiring the outstanding Revolving Credit CommitmentsLoans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (B) by causing non-increasing Revolving Credit Lenders to assign portions of their outstanding Revolving Credit Loans to new or increasing Revolving Credit Lenders, (C) by a combination of the foregoing or (D) by any other means agreed to by the Administrative Agent and the Initial Borrower, and any such prepayment or assignment shall be subject to Section 2.15 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.
(ed) The Notwithstanding anything to the contrary in this Agreement, with respect to any Incremental Loan Commitments Facility the proceeds of which are to be used by the Initial Borrower or any other Borrower Group Member to finance, in whole or in part, a Permitted Acquisition, other Investment permitted under Section 6.7 or a Specified Prepayment permitted under Section 6.8 (a “Limited Conditionality Transaction”), for purposes of determining (x) compliance with the Financial Covenant or any financial ratio, (y) accuracy of representations and loans made pursuant theretowarranties (other than Specified Representations which shall be accurate in all material respects as of the Incremental Facility Closing Date) or occurrence of a Default or Event of Default (other than a Specified Default), established pursuant to this Section shall constitute Loans and Commitments underor (z) Excess Availability or availability under baskets (including baskets measured as a percentage of Consolidated EBITDA or Consolidated Total Assets or based on the Payment Conditions), in each case, in connection with such Permitted Acquisition, Investment or Specified Prepayment, and any related incurrence of Indebtedness or Liens under Section 6.2, 6.3 or 6.10, the Initial Borrower shall have the option of making the applicable determinations under this Agreement as of the date the definitive agreement for such Permitted Acquisition or permitted Investment is executed, or the redemption or prepayment notice is given for such Specified Prepayment (and the applicable financial ratios, Excess Availability or basket shall be entitled calculated as if the Limited Conditionality Transaction and other Pro Forma Transactions in connection therewith, were consummated on such date until consummated or terminated); provided that (i) Excess Availability is subject to all the benefits afforded bylimits of the Acquired Asset Borrowing Base, if applicable, (ii) the foregoing clause (d) shall be not applicable for purposes of Section 4.2 (it being understood that the provisions of Section 2.20(c) shall be applicable to Sections 4.2(a) and (b)) and (iii) if the Initial Borrower elects to have such determinations occur as of the date such definitive agreement or redemption or prepayment notice, any related incurrence of Indebtedness or Liens shall be deemed to have occurred on such date and outstanding thereafter for purposes of subsequently calculating any ratios under this Agreement after such date and before the consummation of such Limited Conditionality Transaction and to the extent baskets were utilized in satisfying any covenants, such baskets shall be deemed utilized, but any calculation of Consolidated Total Assets or Consolidated EBITDA for purposes of other Loan Documents, and shall, without limiting incurrences of Indebtedness or Liens or determining the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documentspermissibility of other transactions (not related to such Limited Conditionality Transaction) shall not reflect such Limited Conditionality Transaction until it is closed.
Appears in 1 contract
Sources: Abl Credit Agreement (Foundation Building Materials, Inc.)
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, Company may by written notice to the Agent, Syndication Agent elect to request an increase in the (x) existing Term Loans establishment of any Class one or more new term loan commitments (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”"NEW TERM LOAN COMMITMENTS"), by an amount not in excess of $25,000,000 in the aggregate amount, for all and not less than $10,000,000 individually (or such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase lesser amount which shall be in a minimum principal amount approved by Administrative Agent and Syndication Agent), and integral multiples of $5,000,000 unless otherwise agreed by the Agent1,000,000 in excess of that amount. Each such notice shall specify (iA) the amount of date (each, an "INCREASED AMOUNT DATE") on which Company proposes that the proposed increaseNew Term Loan Commitments shall be effective, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) which shall be a date not less than 10 Business Days after the date on which such increase shall become effective notice is delivered to Syndication Agent (or such later date as may be agreed to by the “Increase Effective Date”Syndication Agent), and (iiiB) the identity of each Lender or other Person that is an Eligible Transferee Assignee (each, a "NEW TERM LOAN LENDER") to whom the Borrower Company proposes any portion of such Revolving Commitments or Incremental New Term Loan Commitments, as applicable, Commitments be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided PROVIDED that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental New Term Loan Commitments, as applicable, Commitments may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental a New Term Loan Commitment. Such New Term Loan Commitments shall become effective, as applicable, and the Revolving Commitments of such Increased Amount Date; PROVIDED that (1) no Default or Terms Loans, as applicable, Event of Default shall only be increased exist on such Increased Amount Date before or after giving effect to the extent of Incremental Revolving Credit Commitments or Incremental such New Term Loan Commitments, as applicable; (2) both before and after giving effect to the making of any Series of New Term Loans, agreed each of the conditions set forth in Section 3.2 shall be satisfied; (3) Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 6.8 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Term Loan Commitments; (4) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Company, Syndication Agent and Administrative Agent, each of which Joinder Agreements shall be recorded in the Register and shall be subject to the requirements set forth in Section 2.19(c); (5) Company shall make any payments required pursuant to such Joinder Agreements in connection with the New Term Loan Commitments; and (6) Company shall deliver or cause to be provided delivered any legal opinions or other documents reasonably requested by Lenders or Eligible TransfereesAdministrative Agent in connection with any such transaction. Any Eligible Transferee who agrees New Term Loans made on an Increased Amount Date shall be designated a separate series (a "SERIES") of New Term Loans for all purposes of this Agreement. On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to provide such Incremental Revolving Credit Commitment or Incremental the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender of any Series shall make a Loan to Company (a "NEW TERM LOAN") in an amount equal to its New Term Loan Commitment of such Series, and (ii) each New Term Loan Lender of any Series shall execute become a joinder agreement Lender hereunder with respect to which the New Term Loan Commitment of such Eligible Transferee Series and the New Term 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 New Term Loan Commitments and the New Term Loan Lenders of such Series. 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 Joinder Agreement, identical to the Term Loans. In any event (whose consent thereto i) the weighted average life to maturity of all New Term Loans of any Series shall be no shorter than the remaining weighted average life to maturity of the Terms Loans, (ii) the applicable New Term Loan Maturity Date of each Series shall be no shorter than the final maturity of the Term Loans, and (iii) the rate of interest and any non-usage fee applicable to the New Term Loans of each Series shall be as determined by Company and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; PROVIDED HOWEVER that the interest rate applicable to the New Term Loans shall not be unreasonably withheld or delayed) are party (greater than the “Increase Joinder”)highest interest rate that may, under any circumstances, be payable with respect to Term Loans plus 0.50% per annum unless the interest rate with respect to the Term Loan is increased so as to equal the interest rate applicable to the New Term Loans. If such proposed L▇▇▇▇▇ agrees to execute an Increase Each Joinder in connection with an Approved Increase, such Increase Joinder Agreement may, without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the opinion of the Syndication Agent and Administrative Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.182.24.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, may by written notice to the Agent, elect Administrative Agent enter into one or more increases to request an increase in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Credit Commitments and/or to the Letters of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), Maximum Amount (each increase that satisfies the terms and conditions of this Section 2.18such increase, an “Approved IncreaseIncremental Commitment”), by and each such facility, an “Incremental Facility”) in an aggregate amountamount not in excess of $200,000,000 (for the avoidance of doubt, for all such increases this amount is in addition to, and not limited by, amounts otherwise permitted under this Agreement pursuant to Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent6.06(p)). Each such notice shall specify (i) the amount of date (each, an “Incremental Effective Date”) on which the proposed increaseBorrower proposes that the Incremental Commitments shall be effective, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) which shall be a date not less than 10 Business Days after the date on which such increase shall become effective (notice is delivered to the “Increase Effective Date”), Administrative Agent and (iiiii) the identity of each Lender or other Eligible Transferee Assignee that is a commercial bank to whom the Borrower proposes any portion of such Revolving Incremental Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any existing Lender or other Eligible Transferee may be approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, and may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Commitment. Each Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute be in an aggregate amount of $5,000,000 or any whole multiple of $500,000 in excess thereof. The Incremental Commitments shall be effected by a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Incremental Joinder”)) executed by the Borrower, the Administrative Agent, each Issuing Bank and each Lender making such Incremental Commitment, in form and substance reasonably satisfactory to each of them. If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved IncreaseNotwithstanding the provisions of Section 10.02, such Increase the Incremental Joinder may, without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.182.23. Unless In addition, unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document Documents to Revolving Credit Loans or Letters of Credit shall be deemed, unless the context otherwise requires, to include Incremental references to Revolving Credit Commitments and Loans or Letters of Credit made pursuant to Incremental Term Loan Commitments Commitments, respectively, made pursuant to this Agreement. This Section 2.182.23 shall supersede any provisions in Section 2.17 or Section 10.02 to the contrary.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase the Incremental Effective Date; provided that, subject to Section 1.7, :
(A) each of the conditions set forth in the relevant Incremental Joinder shall be satisfied;
(B) each of the conditions set forth in Section 3.2 4.02 shall be satisfied satisfied;
(or waivedC) prior to the effectiveness of on a pro forma basis (assuming that such Incremental Revolving Credit Commitments are fully drawn or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”utilized), the condition Borrower shall be in compliance with each of the covenants set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, 5.02 as of the date end of the initial borrowing latest fiscal quarter;
(D) the Borrower shall make any breakage payments in connection with any adjustment of Revolving Credit Loans pursuant to such Acquisition-Related Incremental Commitment, Section 2.15(d);
(E) the specified representations Borrower shall deliver or cause to be true delivered officer’s certificates and correct in all material respects (or in all respects if qualified by materiality) immediately prior tolegal opinions of the type delivered on the Closing Date to the extent reasonably requested by, and immediately after giving effect in form and substance reasonably satisfactory to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.Administrative Agent; and
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, Borrowers shall be entitled on one or more occasions after to increase commitments under the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing Term Loans of any Class ABL Facility (the commitments thereto, the “Incremental Term Loan Additional ABL Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by in an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of up to $5,000,000 unless otherwise agreed 500,000,000 (which amount shall be reduced dollar for dollar by the Agent. Each such notice shall specify (i) the amount of the proposed increaseamount, if any, to by which the existing Revolving Commitments aggregate principal amount of the ABL Facility exceeds $3,000,000,000 on the Closing Date), which shall have the same guarantees as, and be secured on a pari passu basis by the same collateral securing, the ABL Facility; provided that (i) no event of default or Term Loans, as applicabledefault exists or would exist after giving effect thereto, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), representations and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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, warranties in the opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be ABL Facility Documents are true and correct in all material respects respects, (or in all respects if qualified by materialityiii) immediately prior tothe final maturity date of Additional ABL Commitments shall be the ABL Maturity Date, and immediately after giving effect to, (iv) the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The other terms and provisions of Loans made pursuant to an Approved Increase conditions in the respect thereof shall be identical to the terms and provisions same as those applicable to the relevant Class of Loans and/or other commitments and loans under the ABL Facility except as otherwise provided below. The Borrowers may seek Additional ABL Commitments subject to such Approved Increase immediately prior to such Increase Effective Date from existing Lenders (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all agree or decline to participate in its sole discretion) and additional lenders who will become Lenders in connection therewith. The initial “yield” on the benefits afforded byAdditional ABL Commitments shall not exceed the “yield” at such time on the ABL Facility (with “yield” being determined by the Administrative Agent taking into account the applicable margin, this Agreement and the other Loan Documentscommitment fees, and shallany LIBOR or Base Rate floors, without limiting but not any fees paid to the foregoingArrangers in connection with the ABL Facility or the arrangers of the Additional ABL Commitments that are not shared with all Lenders), benefit equally and ratably from unless the guarantees and security interests created by applicable margin on revolving loans made pursuant to the Loan Documentsthen existing commitments are increased so that the “yield” on such loans pursuant to the existing commitments is equal to the “yield” for the loans to be made pursuant to the Additional ABL Commitments. The determination of the yield differential shall not take into account upfront fees or OID paid for either the then existing commitments under the ABL Facility or the Additional ABL Commitments.
Appears in 1 contract
Sources: Commitment Letter (Staples Inc)
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Administrative Agent, elect to request an prior to the latest Revolving Maturity Date at such time, (I) up to three increases to the existing Revolving Commitments (any such increase in the together with any such increase made pursuant to clause (xII) existing Term Loans of any Class (the commitments theretobelow, the “Incremental Term Loan Commitments”) and/or (y) existing New Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), in a principal amount (each increase A) not less than $5,000,000 individually (or such lesser amount which shall be reasonably approved by the Administrative Agent or that satisfies shall constitute the terms remaining available amount of New Revolving Commitments permitted to be established pursuant to and conditions of in accordance with this Section 2.18, an “Approved Increase”2.24(a) after giving effect to the aggregate amount of New Revolving Commitments established pursuant to this Section 2.24(a) after the Closing Date and prior to such date), by an aggregate amountand integral multiples of $5,000,000 in excess thereof, and (B) not to exceed, for all such increases under New Revolving Commitments established pursuant to this Section 2.182.24(a)(I), an aggregate amount (the “Maximum Incremental Amount”) equal to $25,000,000; provided, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase Amount shall be in a minimum reduced by the aggregate principal amount of any New Revolving Commitments established prior to such date and (II) to establish New Revolving Commitments following the Closing Date, in a principal amount (A) not less than $5,000,000 unless otherwise agreed (or such lesser amount which shall be reasonably approved by the Administrative Agent), and integral multiples of $5,000,000 in excess thereof, and (B) not to exceed, for all new Revolving Commitments established pursuant to this Section 2.24(a)(II), an aggregate amount equal to the Additional L/C Amount. Each such notice shall specify the date (ieach, an “Increased Amount Date”) on which the amount of Borrower proposes that the proposed increase, if any, to the existing New Revolving Commitments shall be effective, which shall be a date not less than ten (10) Business Days (or Term Loans, such shorter time as applicable, (iithe Administrative Agent may agree in its sole discretion) after the date on which such increase notice is delivered to the Administrative Agent and the Lender thereof, which shall be an eligible assignee pursuant to and in accordance with Section 9.04(b), and subject to the prior written consent of the Administrative Agent and the Issuing Banks, in each case, to the extent required pursuant to Section 9.04(b) as if such New Revolving Lender were an assignee. Such New Revolving Commitments shall become effective as of such Increased Amount Date; provided that (1) no Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such New Revolving Commitments, as applicable; (2) both before and after giving effect to the making of any New Revolving Loans, the condition set forth in Section 4.01(d) shall be satisfied; (3) the Borrower and its Subsidiaries shall be in pro forma compliance with the covenant set forth in Section 6.09 as of the last day of the most recently ended fiscal quarter for which financial statements are required to be delivered pursuant to Sections 5.04(a) and 5.04(b) immediately after giving effect to such New Commitments and any Investment to be consummated in connection therewith; (4) the New Revolving Commitments shall be effected pursuant to one or more Joinder Agreements executed by the Borrower, the Lenders providing such New Revolving Commitments and the Administrative Agent, and each of which shall be recorded in the Register; provided that if the New Revolving Commitments are not provided by existing Lenders, no more than two Acceptable Financial Institutions may provide the New Revolving Commitments; (5) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the New Revolving Commitments, as applicable; (6) the Borrower shall deliver or cause to be delivered 85 US-DOCS\104110541.24 any customary and appropriate legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction; (7) the requirements set forth in Section 9.17 shall have been satisfied; and (8) in the case of the Additional L/C Amount, such New Revolving Commitments shall be available only for the issuance of Letters of Credit which are fully cash collateralized.
(b) On any Increased Amount Date on which New Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the Lenders with Revolving Commitments shall assign to each Lender with a New Revolving Commitment (each, a “Increase Effective DateNew Revolving Lender”) and each of the New Revolving Lenders shall purchase from each of the 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 with Revolving Loans and New Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (ii) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each loan made thereunder (a “New Revolving Loan”) shall be deemed, for all applicable purposes and as of the Increased Amount Date, a Revolving Loan and (iii) each New Revolving Lender shall become a Lender as of the identity Increased Amount Date with respect to its New Revolving Commitment and all matters relating thereto.
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Lender or other Eligible Transferee to whom Increased Amount Date and in respect thereof (i) the Borrower proposes any portion of such New Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental New Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan CommitmentLenders, as applicable, and (ii) in the case of each notice to any Lender with Revolving Loans, the respective interests in such Lender’s Revolving Loans subject to the assignments contemplated by Section 2.24(b).
(d) As of the Increased Amount Date, the terms and provisions of the New Revolving Loans and New Revolving Commitments shall be identical to the extent applicable to those of the Revolving Loans and the Revolving Commitments or Terms Loans, as applicable, shall only be increased in effect on the Increased Amount Date with respect to the extent of Incremental such New Revolving Credit Commitments or Incremental Term Loan Loans and New Revolving Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent .
(whose consent thereto shall not be unreasonably withheld or delayede) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Each Joinder in connection with an Approved Increase, such Increase Joinder Agreement may, without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the AgentAdministrative Agent and the Borrower, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.182.24.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Revolving Credit Agreement
Incremental Facilities. (a) The Borrower mayAt any time and from time to time, on one or more occasions after the Restatement Effective Date and prior subject to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of this Section 2.18such notice to each of the Lenders), an request to incur one or more increases in the Tranche A Credit Commitments (“Approved IncreaseIncremental Tranche A Commitments” or the “Incremental Facilities”); provided, by an aggregate amountthat, for all such increases under this Section 2.18upon the effectiveness of each Incremental Facility Amendment, that does not exceed the Maximum Incremental Facilities Amountno Default or Event of Default has occurred and is continuing or shall result therefrom. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount of the proposed increase, if any, Notwithstanding anything to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder maycontrary herein, without the consent of the Tranche A Required Lenders, the aggregate amount of the Incremental Facilities shall not exceed, at any other Lendertime, effect the sum of (i) $300 million (the “Incremental Fixed Amount”) plus (ii) the amount of all optional prepayments of Borrowings of Tranche A Loans in accordance with Section 2.12(a) to the extent such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, prepayments are accompanied by a permanent reduction in the opinion Tranche A Credit Commitments in accordance with Section 2.10(b) so long as such prepayment is not funded with a concurrent incurrence of the Agent, to effect the provisions of this Section 2.18Indebtedness. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans All Incremental Tranche A Commitments shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments in an integral multiple of $1.0 million and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to in an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied aggregate principal amount that is not less than $25.0 million (or waived) prior to in such lesser minimum amount agreed by the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan CommitmentsAdministrative Agent); provided, further, that, with that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability in respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for Facilities. For the avoidance of doubt, differences no incremental facilities in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall FILO Loans may be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitmentsincurred.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Incremental Facilities. (ai) The Borrower may, on one or more occasions after For the Restatement Effective Date avoidance of doubt and prior notwithstanding any provision to the Maturity Datecontrary set forth in this Agreement or any other Credit Document, by written notice this Agreement may be amended (or amended and restated) at any time and from time to time to increase the Revolving Committed Amount (each such increase to the Agent, elect Revolving Committed Amount being referred to request herein as an increase in the (x) existing Term Loans “Incremental Facility,” and all of any Class (the commitments thereto, such increases being referred to collectively as the “Incremental Term Loan CommitmentsFacilities”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with to be made to the Incremental Term Loan CommitmentsBorrower by an agreement in writing entered into by the Borrower, the “Incremental Loan Commitments”), Administrative Agent and each Person (each including any Lender) that shall agree to provide any such increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, but without the 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 such amendments to as if it had originally been a Lender under this Agreement and with the other Loan Documents as may be necessary or appropriateCommitment; provided, in however, that: (A) the opinion aggregate principal amount of additional Commitments effected after the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made Closing Date pursuant to this Section 2.18.
9.1(c) shall not exceed $25,000,000; (bB) The Incremental Loan no Default or Event of Default shall exist at the time that the amendment giving effect to any such additional Commitments with respect becomes effective; and (C) no Lender shall be obligated to an Approved Increase shall become effective as participate in any such increase by increasing its own commitment hereunder unless such Lender elects to do so in its sole discretion at the time of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) increase. The terms and provisions of Loans made pursuant conditions applicable to an Approved Increase any additional Commitments shall be identical to the terms and provisions same as those applicable to the relevant Class of then existing Commitments (including, without limitation, as to interest rate). The Loans and/or and Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section 9.1(c) shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, Credit Documents and shall, without limiting limitation of the foregoing, benefit equally and ratably from the guarantees Guaranty and security interests created by the Loan Security Documents, and the Borrower shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the requirements of this sentence are satisfied after the establishment of any such Incremental Facility.
(ii) Any such amendment (or amendment and restatement) effected pursuant to Section 9.1(c) shall amend the provisions of this Agreement and the other Credit Documents to set forth the terms of each Incremental Facility established thereby (including the amount and the final maturity thereof, any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof (in each case subject to any applicable restrictions set forth in subsection (i) of this Section 9.1(c)) and to effect such other changes (including changes to the provisions of Section 9.1(a), Section 2.6 and the definition of “Required Lenders”) as the Borrower and the Administrative Agent shall deem necessary or advisable in connection with the establishment of any such Incremental Facility; provided, however, that no such agreement shall effect any change described in any of clauses of Section 9.1(a) without the consent of each Person required to consent to such change under such clause (it being agreed, however, that any increase in the aggregate Revolving Committed Amount will not, of itself, be deemed to effect any of the changes described in Section 9.1(a), and that modifications to Section 2.6, Section 2.10 or the definition of “Required Lenders” or other provisions relating to voting provisions to provide the Persons providing the applicable Incremental Facility with the benefit of such provisions will not, by themselves, be deemed to effect any of the changes described in Section 9.1(a).
Appears in 1 contract
Sources: Credit Agreement (Bravo Brio Restaurant Group, Inc.)
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, without the consent of any other Lender, effect such amendments to this This Agreement and the other Loan Documents as may be necessary amended at any time after the Closing Date to add one or appropriatemore tranches of term loans (each an “Incremental Term Facility”) and/or increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase is an “Incremental Facility”), at the option of the Borrower by an agreement in writing entered into by the Borrower, the Guarantors, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each, an “Incremental Facility Amendment”); provided that:
(a) except in the case of a UK Acquisition Facility (as to which this clause (a) does not apply), the aggregate principal amount of all Incremental Facilities incurred after the Fifth Amendment Effective Date (which for the avoidance of doubt shall not include any UK Acquisition Facility) shall not exceed (i) $150 million plus (ii) any additional amount (which, for the avoidance of doubt, may be incurred prior to the amount described in clause (i)) so long as, in the opinion case of this clause (ii) only, after giving effect to the incurrence of such Incremental Facility (and the use of proceeds thereof) on a Pro Forma Basis the Consolidated Senior Secured Leverage Ratio recomputed as of the Agent, to effect end of the provisions period of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to this Section 2.18.7.01(a) or (b) would not exceed 3.50:1.0; provided, that for purposes of such calculation, cash proceeds of such Incremental Facility shall not be netted from Consolidated Funded Indebtedness;
(b) The Incremental Loan Commitments with respect except in the case of a UK Acquisition Facility (as to an Approved Increase which this clause (b) does not apply), no Default shall become exist on the effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness date of such Incremental Revolving Credit Commitments Facility or would exist after giving effect to such Incremental Facility;
(c) except in the funding case of the relevant Incremental Term Loan Commitments; provided, further, that, with respect a UK Acquisition Facility (as to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition which this clause (“Acquisition-Related Incremental Commitments”c) does not apply), the condition set forth representations and warranties of each Loan Party contained in Section 3.2(a) shall be deemed to have been satisfied so long asArticle VI or any other Loan Document, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitmentor which are contained in any document furnished at any time under or in connection herewith or therewith, the specified representations shall be true and correct in all material respects (or on and as of the effective date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to as of such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).earlier date;
(d) With respect no existing Lender shall be under any obligation to provide any Incremental Revolving Credit Commitments, Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(e) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(f) the Borrower shall deliver to the extent any Advances or Letters Administrative Agent:
(i) a certificate of Credit each Loan Party dated as of the relevant Class subject date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) except in the case of a UK Acquisition Facility (as to such Approved Increase are outstanding on which this clause (B) does not apply), in the Increase Effective Date, each case of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”)Borrower, and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order certifying that, after giving effect to all such assignments before and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit CommitmentsFacility, (1) the representations and warranties of each Loan Party contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date, and (2) no Default exists;
(ii) except in the case of a UK Acquisition Facility (as to which this clause (ii) does not apply) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility; and
(iii) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility;
(g) except in the case of a UK Acquisition Facility (as to which this clause (g) does not apply), in the case of an Incremental Facility the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility (and the use of proceeds thereof) on a Pro Forma Basis the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 recomputed as of the end of the period of the four fiscal quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) or (b);
(h) in the case of an Incremental Term Facility the Borrower and the Administrative Agent shall have mutually agreed whether such Incremental Term Facility is a term loan A (an “Incremental Tranche A Term Facility”) or a term loan B (an “Incremental Tranche B Term Facility”)
(i) in the case of an Incremental Tranche A Term Facility:
(i) the final maturity date for such Incremental Tranche A Term Facility shall not be earlier than the latest maturity date of any other Tranche A Term Facilities and shall not be later than the earliest maturity date of any Tranche B Term Facility;
(ii) the Weighted Average Life for such Incremental Tranche A Term Facility shall not be shorter than the then remaining Weighted Average Life of any other Tranche A Term Facility and shall not be longer than the remaining Weighted Average Life of any Tranche B Term Facility;
(iii) if the All-In Yield on such Incremental Tranche A Term Facility exceeds the All-In Yield on any outstanding Tranche A Term Facility by more than 50 basis points (0.50%) per annum, then the Applicable Rate payable by the Borrower with respect to such outstanding Tranche A Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In Yield on such outstanding Tranche A Term Facility to be 50 basis points (0.50%) less than the All-In Yield on such Incremental Tranche A Term Facility (such increase to be allocated among such outstanding Tranche A Term Facility as reasonably determined by the Administrative Agent in consultation with the Borrower);
(iv) subject to the foregoing clauses, the other terms of such Incremental Tranche A Term Facility (including interest rate, interest rate margins, interest rate floors, fees, original issue discount, call protection or prepayment penalty, amortization and final maturity date) shall be as agreed by the Borrower and the Persons providing such Incremental Tranche A Term Facility and approved by the Administrative Agent; and
(v) such Incremental Tranche A Term Facility shall share ratably in any mandatory prepayments of the other Term Facilities pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for one or more of the then outstanding Term Facilities) and shall have ratable voting rights as the other Term Facilities (or otherwise provide for more favorable voting rights for one or more of the then outstanding Term Facilities).
(ej) The in the case of an Incremental Loan Commitments Tranche B Term Facility:
(i) the final maturity of such Incremental Tranche B Term Facility shall not be earlier than the final maturity date of any other Term Facility;
(ii) the Weighted Average Life of such Incremental Tranche B Term Facility shall not be shorter than the then remaining Weighted Average Life of any other Term Facility;
(iii) if the All-In Yield on such Incremental Tranche B Term Facility exceeds the All-In Yield on any outstanding Tranche B Term Facility by more than 50 basis points (0.50%) per annum, then the Applicable Rate payable by the Borrower with respect to such outstanding Tranche B Term Facility shall on the effective date of such Incremental Term Facility be increased to the extent necessary to cause the All-In Yield on such outstanding Tranche B Term Facility to be 50 basis points (0.50%) less than the All-In Yield on such Incremental Tranche B Term Facility (such increase to be allocated among such outstanding Tranche B Term Facility as reasonably determined by the Administrative Agent in consultation with the Borrower);
(iv) subject to the foregoing clauses, the other terms of such Incremental Tranche B Term Facility (including interest rate, interest rate margins, interest rate floors, fees, original issue discount, call protection or prepayment penalty, amortization and loans made pursuant thereto, established final maturity date) shall be as agreed by the Borrower and the Persons providing such Incremental Tranche B Term Facility and approved by the Administrative Agent; and
(v) such Incremental Tranche B Term Facility shall share ratably in any mandatory prepayments of the other Term Facilities pursuant to this Section shall constitute Loans and Commitments under, 2.05 (or otherwise provide for more favorable prepayment treatment for one or more of the then outstanding Term Facilities) and shall be entitled to all the benefits afforded by, this Agreement and have ratable voting rights as the other Loan DocumentsTerm Facilities (or otherwise provide for more favorable voting rights for one or more of the then outstanding Term Facilities).
(k) in the case of any Incremental Revolving Increase:
(i) if any Revolving Loans are outstanding on the date of such increase, and shall(x) each Lender providing such Incremental Revolving Increase shall make Revolving Loans, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created proceeds of which shall be applied by the Loan DocumentsAdministrative Agent to prepay Revolving Loans of the existing Lenders, in an amount necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Lenders with a Revolving Commitment and (y) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans of existing Lenders; and
(ii) such Incremental Revolving Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Aggregate Revolving Commitments.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, may by written notice to the Agent, Administrative Agent elect to request prior to the Revolving Commitment Termination Date, an increase in to the existing Revolving Commitment (x) existing Term Loans of any Class (the commitments theretosuch increase, the “Incremental Term New Revolving Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an amount in the aggregate amount, for all such increases under this Section 2.18, that does not exceed in excess the Maximum Incremental Facilities Amount. Such Approved Increase Amount and not less than $10,000,000 individually in the case of the first such New Revolving Loan Commitment and not less than $5,000,000 individually in the case of each subsequent New Revolving Loan Commitment (or, in each case, such lesser amount which shall be in a minimum principal amount of $5,000,000 unless otherwise agreed approved by the Administrative Agent). Each such notice shall specify (i) the amount of date (each, an “Increased Amount Date”) on which the proposed increaseBorrower proposes that the New Revolving Loan Commitments shall be effective, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) which shall be a date not less than five Business Days after the date on which such increase shall become effective notice is delivered to the Administrative Agent (or such shorter period as the “Increase Effective Date”), Administrative Agent may agree) and (iiiii) the identity of each Lender or other Eligible Transferee Person that is an eligible assignee under Section 11.04(b) (which, if not a Lender, an Approved Fund or an Affiliate of a Lender), shall be reasonably satisfactory to the Administrative Agent and the Issuing Banks (in each case, not to be unreasonably withheld or delayed) (each, a “New Revolving Loan Lender”) to whom the Borrower proposes any portion of such New Revolving Loan Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee Person approached to provide all or a portion of the Incremental any New Revolving Credit Loan Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, decline to participate in its sole discretion, to provide such Incremental . Such New Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Increased Amount Date; provided thatthat (1) both before and after giving effect to such New Revolving Loan Commitments, subject to Section 1.7as applicable, each of the conditions set forth in Section 3.2 shall be satisfied 4.02 (or waived) prior to with the effectiveness exception of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”Section 4.02(a), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long assatisfied, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other thanincluding, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit making of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a representations and warranties contained in Section 3.04(b) hereof; (2) any New Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans New Revolving Loans made pursuant theretohereto shall be on the same terms as the existing Revolving Commitments and Loans made pursuant thereto (including, established for the avoidance of doubt, with respect to maturity date and pricing), as set forth in and pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, with such additional amendments thereto as may be necessary or appropriate in the judgment of the Administrative Agent to effect such New Revolving Loan Commitments, and shall(3) as a condition to the effectiveness of such New Revolving Loan Commitments, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.Borrower shall deliver or cause to be delivered any customary
Appears in 1 contract
Sources: Credit Agreement (CoreWeave, Inc.)
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, may by written notice to the Agent, Administrative Agent elect to request prior to the Revolving Commitment Termination Date, an increase in to the existing Revolving Commitment (x) existing Term Loans of any Class (the commitments theretosuch increase, the “Incremental Term New Revolving Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an amount in the aggregate amount, for all such increases under this Section 2.18, that does not exceed in excess the Maximum Incremental Facilities Amount. Such Approved Increase Amount and not less than $10,000,000 individually in the case of the first such New Revolving Loan Commitment and not less than $5,000,000 individually in the case of each subsequent New Revolving Loan Commitment (or, in each case, such lesser amount which shall be in a minimum principal amount of $5,000,000 unless otherwise agreed approved by the Administrative Agent). Each such notice shall specify (i) the amount of date (each, an “Increased Amount Date”) on which the proposed increaseBorrower proposes that the New Revolving Loan Commitments shall be effective, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) which shall be a date not less than five Business Days after the date on which such increase shall become effective notice is delivered to the Administrative Agent (or such shorter period as the “Increase Effective Date”), Administrative Agent may agree) and (iiiii) the identity of each Lender or other Eligible Transferee Person that is an eligible assignee under Section 11.04(b) (which, if not a Lender, an Approved Fund or an Affiliate of a Lender), shall be reasonably satisfactory to the Administrative Agent and the Issuing Banks (in each case, not to be unreasonably withheld or delayed) (each, a “New Revolving Loan Lender”) to whom the Borrower proposes any portion of such New Revolving Loan Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee Person approached to provide all or a portion of the Incremental any New Revolving Credit Loan Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, decline to participate in its sole discretion, to provide such Incremental . Such New Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Increased Amount Date; provided thatthat (1) both before and after giving effect to such New Revolving Loan Commitments, subject to Section 1.7as applicable, each of the conditions set forth in Section 3.2 shall be satisfied 4.02 (or waived) prior to with the effectiveness exception of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”Section 4.02(a), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long assatisfied, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other thanincluding, for the avoidance of doubt, differences the making of the representations and warranties contained in upfront feesSection 3.04(b) hereof; (2) any New Revolving Loan Commitments and New Revolving Loans made pursuant hereto shall be on the same terms as the existing Revolving Commitments and Loans made pursuant thereto (including, for the avoidance of doubt, with respect to maturity date and pricing), as set forth in and pursuant to the Loan Documents, with such additional amendments thereto as may be necessary or appropriate in the judgment of the Administrative Agent to effect such New Revolving Loan Commitments, and (3) as a condition to the effectiveness of such New Revolving Loan Commitments, the Borrower shall deliver or cause to be delivered any customary legal opinions or other certificates reasonably requested by the Administrative Agent in connection with any such transaction. Each joinder agreement with a New Revolving Loan Lender not previously a Lender shall be subject to the consent (not to be unreasonably withheld or delayed) of the Issuing Banks.
(db) With respect to On any Incremental Increased Amount Date on which New Revolving Credit CommitmentsLoan Commitments are effected, subject to the extent any Advances or Letters of Credit satisfaction of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Dateforegoing terms and conditions, (i) each of the Lenders of such Class having a with Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) Exposure shall assign to any Lender each of such Class which is acquiring an Incremental the New Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Loan Lenders”), and such each of the New Revolving Post-Increase Loan Lenders shall purchase from each Revolving Pre-Increase Lenderof the Lenders, at the principal amount thereofthereof (together with accrued interest), such interests in the Advances and participation interests in Letters of Credit Loans outstanding on such Increase Effective Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit Loans will be held by Revolving Pre-Increase existing Loan Lenders and New Revolving Post-Increase Loan Lenders ratably in accordance with their Pro Rata Share of such Class Revolving Commitments after giving effect to the addition of such Incremental New Revolving Credit Commitments.
(e) The Incremental Loan Commitments to the Revolving Commitments, (ii) each New Revolving Loan Commitment shall be deemed for all purposes a Revolving Commitment and loans each loan made pursuant thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Loan, (iii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Loan Commitment and all matters relating thereto, established and (iv) each existing Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Revolving Loan Lender, and each New Revolving Loan Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each deemed Assignment and Assumption of participations, all of the Lenders’ (including each New Revolving Loan Lender) participations hereunder in Letters of Credit shall be held on a pro rata basis on the basis of their respective Revolving Commitment (after giving effect to any increase in the Revolving Commitment pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.2.23
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Slack Technologies, Inc.)
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Administrative Agent, elect to request an increase in the establishment of one or more (x) existing additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “Incremental New Term Loan Commitments”) and/or by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) existing Revolving shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Term Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Pounds Sterling. In connection with the incurrence of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases Indebtedness under this Section 2.182.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that does the New Term Loan Commitments do not exceed the Maximum Incremental Facilities Amount. Such Approved Increase , which certificate shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by reasonable detail and shall provide the Agent. Each calculations and basis therefor and, subject to reclassification as set forth in Section 10.1, classify such notice shall specify Indebtedness as being incurred under clause (i) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, clause (ii) of the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity definition of each Maximum Incremental Facilities Amount. The Borrower may approach any Lender or any Person (other Eligible Transferee than a natural Person) to whom the Borrower proposes any provide all or a portion of such Revolving Commitments or Incremental the New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender offered or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental New Term Loan Commitments, as applicable, Commitments may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental a New Term Loan Commitment. In each case, as applicableon each applicable Increased Amount Date (subject to Section 1.12), and the Revolving such New Term Loan Commitments shall be subject to (i) no Event of Default (except in connection with an acquisition or Terms Loansinvestment (including any Permitted Acquisition or Investment), as applicable, no Event of Default under Section 11.1 or Section 11.5) shall only be increased exist on such Increased Amount Date before or after giving effect to the extent of Incremental Revolving Credit Commitments or Incremental such New Term Loan Commitments, as applicable, and subject to Section 1.12, (ii) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans shall, at the election of the Borrower and agreed to be provided by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or Eligible Transferees. Any Eligible Transferee who agrees (b) as part of a Series of existing Term Loans for all purposes of this Agreement.
(b) [Reserved].
(c) New Term Loan Commitments of any Series shall be subject to provide such Incremental Revolving Credit Commitment or Incremental the satisfaction of the foregoing and following terms and conditions, each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall execute make a joinder agreement Loan to which the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Eligible Transferee 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 Agent New Term Loans of such Series made pursuant thereto.
(whose consent thereto d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall not be unreasonably withheld or delayedon terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) are party the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees weighted average life to execute an Increase Joinder maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the then existing Initial Term Loans as calculated without giving effect to any prepayments made in connection with an Approved Increasethe Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that only during the period commencing on the Closing Date and ending on the thirty month anniversary of the Closing Date, if the Effective Yield for LIBORSOFR Loans or ABR Loans in respect of such Increase New Term Loans consisting of Term Loans that are secured by the Collateral on a pari passu basis with the Initial Term Loans exceeds the Effective Yield for LIBORSOFR Loans or ABR Loans in respect of the then existing Initial Term Loans of like currency by more than 0.50%, the Applicable Margin for LIBORSOFR Loans or ABR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for LIBORSOFR Loans or ABR Loans in respect of the New Term Loans minus 0.50% (the terms of this proviso to this clause (iii), the “MFN Protection”); and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent and the Required Lenders (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is also added for the benefit of any corresponding Term Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date).
(e) [Reserved].
(f) Each Joinder Agreement may, without the consent of any other LenderLenders, effect such technical and corresponding amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions provision of this Section 2.182.14.
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). Unless otherwise specifically In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(g) below), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided hereinin the applicable Extension Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, all references no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date . Notwithstanding anything to the contrary in this Agreement and Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any other obligation to agree to have any of its Term Loans of any Existing Term Loan Document Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) [Reserved].
(iii) Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans subject to such Extension Request converted into Extended Term Loans, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans subject to such Extension Request that it has elected to convert into Extended Term Loans. In the event that the aggregate amount of Term Loans subject to Extension Elections exceeds the amount of Extended Term Loans requested pursuant to the Extension Request, Term Loans subject to Extension Elections shall be converted to Extended Term Loans on a pro rata basis based on the amount of Term Loans included in each such Extension Election.
(iv) Extended Term Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.18.
(b2.14(g)(iv) The Incremental Loan Commitments with respect and notwithstanding anything to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions contrary set forth in Section 3.2 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Term Loans established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of Extended Term Loans in an aggregate principal amount that is less than $10,000,000. In addition to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment may, but shall not be satisfied required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14(g) and without limiting the generality or waivedapplicability of Section 13.1 to any Section 2.14 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional Amendment”) to this Agreement and the other Credit Documents; provided that such Section 2.14 Additional Amendments are within the requirements of Section 2.14(g)(i) and do not become effective prior to the effectiveness time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans provided for in any Extension Amendment) by such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Lenders, Credit Parties and other parties (if any) as may be required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1.
(v) Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Existing Term Loan Commitments; provided, further, that, Class is converted to extend the related scheduled maturity date(s) in accordance with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition clause (i) above (an “Acquisition-Related Incremental CommitmentsExtension Date”), the condition set forth in Section 3.2(a) aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to have been satisfied the aggregate principal amount of Extended Term Loans so long asconverted by such Lender on such date, as of and the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations Extended Term Loans shall be true and correct in all material respects established as a separate Class of Term Loans (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to together with any other Extended Term Loans so established on such Acquisition-Related Incremental Commitmentdate).
(cvi) The terms Administrative Agent and provisions of Loans made pursuant to an Approved Increase shall be identical the Lenders hereby consent to the terms and provisions applicable to consummation of the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date transactions contemplated by this Section 2.14 (other thanincluding, for the avoidance of doubt, differences payment of any interest, fees, or premium in upfront fees).
(d) With respect to of any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of Extended Term Loans on such terms as may be set forth in the relevant Class subject to Extension Amendment) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to extension or any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held other transaction contemplated by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents2.14.
Appears in 1 contract
Sources: Second Lien Credit Agreement (BrightSpring Health Services, Inc.)
Incremental Facilities. (a) The Borrower mayshall have the right, on upon at least five Business Days’ prior written notice to the Administrative Agent, to increase the Aggregate Revolving Commitments by up to $50,000,000 in the aggregate in one or more occasions after the Restatement Effective Date and increases at any time prior to the Maturity Date, by written notice to the Agent, elect to request Date (in each case an increase in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan CommitmentsFacility”), (each increase that satisfies the terms and conditions of this Section 2.18subject, an “Approved Increase”)however, by an aggregate amountin any such case, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount to satisfaction of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, following conditions precedent:
(iia) no Default shall have occurred and be continuing on the date on which such increase is to become effective;
(b) such increase shall become be in a minimum amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or such lesser amounts as the Administrative Agent may reasonably agree);
(c) such increase shall be effective only upon receipt by the Administrative Agent of (the “Increase Effective Date”), x) additional Revolving Commitments in a corresponding amount of such requested increase from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional Revolving Commitment) and (iiiy) the identity of documentation from each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such institution providing an additional Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated Commitment evidencing its additional Revolving Commitment and the amounts of such allocations, which Lender or other Eligible Transferee shall its obligations under this Agreement in form and substance reasonably acceptable to the Administrative Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).;
(d) With respect the Administrative Agent shall have received all documents (including authorizing resolutions of the Loan Parties and opinions of counsel to the Loan Parties) it may reasonably request relating to the corporate or other necessary authority for such increase and the validity of such increase in the Aggregate Revolving Commitments, and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent; and
(e) if any Revolving Loans are outstanding at the time of the increase in the Aggregate Revolving Commitments, the Borrower shall, if applicable, prepay one or more existing Revolving Loans (such prepayment to be subject to Section 3.05 but in no event subject to any Incremental Revolving Credit Commitments, to the extent any Advances other prepayment penalty or Letters of Credit of the relevant Class subject to premium) in an amount necessary such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, that after giving effect to all such assignments and purchasesthe increase in the Aggregate Revolving Commitments, such Advances and participation interests in Letters each Lender will hold its pro rata share (based on its Applicable Percentage of Credit will be held by the increased Aggregate Revolving Pre-Increase Lenders and Commitments) of outstanding Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit CommitmentsLoans.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (K12 Inc)
Incremental Facilities. (a) The Borrower may, at any time, on one or more occasions after pursuant to an Incremental Facility Amendment add one or more new Classes of term facilities and/or increase the Restatement Effective Date and prior to principal amount of the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing Term Loans of any existing Class by requesting new commitments to provide such Term Loans (the commitments theretoany such new Class or increase, the an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loan CommitmentsLoans”); provided that:
(i) and/or (y) existing Revolving Commitments no Incremental Commitment in respect of any Class Incremental Facility may be in an amount that is less than $5,000,000 (“or such lesser amount to which the Administrative Agent may reasonably agree);
(ii) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Revolving Credit Commitments” andCommitment, together with and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility);
(iii) no Incremental Facility or Incremental Term Loan Commitments(nor the creation, provision or implementation thereof) shall require the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions approval of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be any existing Lender other than in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount of the proposed increaseits capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Term Loan;
(iv) except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), the terms of any Incremental Facility, if not consistent with those applicable to any then-existing Term Loans (as reasonably determined by the Borrower and the Administrative Agent), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Loan Documents (other than any terms which are applicable only after the then-existing Revolving Commitments Latest Maturity Date), (y) be conformed (or added) to the Loan Documents for the benefit of the existing Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender 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) solely with respect to any Incremental Term Loans that are pari passu with the Initial Term B-1 Loans in right of payment and with respect to security and that are incurred following the Amendment No. 1 Effective Date, the Effective Yield applicable thereto may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term B-1 Loans (with the Effective Yield of all Initial Term Loans calculated based on the Effective Yield of the Additional Initial Term Loans) unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or LIBO RateTerm Benchmark floor) with respect to the Initial Term B-1 Loans is adjusted to be equal to the Effective Yield with respect to such Incremental Facility, minus 0.50% (this clause (v), the “MFN Protection”); provided, further, that any increase in Effective Yield to any Initial Term B-1 Loan due to the application or imposition of an Alternate Base Rate floor or LIBO RateTerm Benchmark floor on any Incremental Term Loan may be effected, at the option of the Borrower, through an increase in (or implementation of, as applicable) any Alternate Base Rate floor or LIBO RateTerm Benchmark floor applicable to such Initial Term B-1 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 Initial Term B-1 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 Initial Term B-1 Loans on the date of incurrence of such Incremental Facility (without giving effect to any prepayments of the Initial Term B-1 Loans);
(viii) [reserved];
(ix) [reserved];
(A) any Incremental Facility (x) shall rank pari passu or junior 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 (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of the relevant Incremental Revolving Credit Commitments or Facility is secured by the Collateral, it shall be subject to an Acceptable Intercreditor Agreement) and (B) no Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, without the consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as Facility may be necessary (x) guaranteed by any Restricted Subsidiary which is not a Loan Party or appropriate, in the opinion (y) secured by any assets of the Agent, to effect Borrower or any Restricted Subsidiary other than the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.Collateral;
(bxi) The any Incremental Loan Commitments with respect to an Approved Increase shall become effective Facility may participate (A) in any voluntary prepayment of Term Loans as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied 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 (or waivedB) prior to the effectiveness in any mandatory prepayment of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition Loans as set forth in Section 3.2(a2.11(b) on a pro rata basis, greater than pro rata basis with respect to prepayments of any such Incremental Facility with the proceeds of any Replacement Term Loans or Refinancing Indebtedness (including Replacement Notes) or less than a pro rata basis with the then-existing Term Loans, in each case, to the extent provided in such Sections;
(xii) notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, (A) after giving effect to the funding of such Incremental Facility and the application of the proceeds thereof, the Borrower shall be in pro forma compliance with each of the Financial Covenants and the Total Debt to Equity Ratio would not exceed 3.00 to 1.00; (B) 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) with respect to the Borrower only) shall have occurred and be deemed to have been satisfied so long as, as of continuing on such date and (C) the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations 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 if qualified and (III) Section 3.14 shall not apply to Collateral that is not required to be created or perfected on or prior to the date of initial funding of such Incremental Facility; provided, further, that with respect to any Limited Condition Transaction, except as set forth above, any other conditions may be satisfied on the LCT Test Date;
(xiii) the proceeds of any Incremental Facility may be used for working capital and/or purchase price adjustments and other general corporate purposes (including capital expenditures, acquisitions, Investments, Restricted Payments and Restricted Debt Payments and related fees and expenses) and any other use not prohibited by materialitythis Agreement; and
(xiv) immediately prior toon 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 immediately after giving effect tonotwithstanding anything to the contrary set forth in Section 2.08 or 2.13 above, such Incremental Term Loans shall be added to (and constitute a part of, be of the initial borrowing pursuant same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding LIBO RateTerm Benchmark Loans of the relevant Class and which end on the last day of such Interest Period.
(b) Incremental Commitments may be provided by any existing Lender, or by any other Eligible Assignee (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Additional Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Acquisition-Related Additional Lender; provided, further, that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(g), mutatis mutandis, to the same extent as if the relevant Incremental CommitmentCommitments and related Obligations had been acquired by such Lender by way of assignment.
(c) The terms Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and provisions of Loans made pursuant to an Approved Increase shall be identical deliver to the terms Administrative Agent and provisions applicable to the Borrower all such documentation (including the relevant Class Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other thanIncremental Commitment, each Additional Lender shall become a Lender for the avoidance of doubt, differences all purposes in upfront fees)connection with this Agreement.
(d) With respect As conditions precedent to the effectiveness of any Incremental Revolving Credit CommitmentsFacility or, subject to Section 1.10, the making of any Incremental Term Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Additional Lender, an administrative questionnaire, in the form provided to such Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably require from such Additional Lender, (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 any Advances or Letters applicable, certifying that the conditions set forth in subclauses (A) and (B) of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date clause (the “Revolving Pre-Increase Lenders”a)(xii) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitmentsabove has been satisfied.
(e) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Commitments and loans made pursuant thereto, established Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section shall constitute Loans 2.22 and Commitments undersuch technical, mechanical and shall conforming amendments as may be entitled to all necessary or appropriate in the benefits afforded by, this Agreement reasonable opinion of the Administrative Agent and the other Loan DocumentsBorrower in connection with the establishment of such new Classes or sub-Classes, and shall, without limiting in each case on terms consistent with this Section 2.22.
(f) This Section 2.22 shall supersede any provision in Section 2.18 or 9.02 to the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documentscontrary.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Incremental Facilities. (a) The Borrower may, on Borrowers may from time to time add one or more occasions after tranches of term loans (each an “Incremental Term Facility”) and/or increase the Restatement Effective Date Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing together with each Incremental Term Loans of any Class (the commitments theretoFacility collectively, the “Incremental Term Loan CommitmentsFacilities”) and/or to this Agreement at the option of the Borrowers by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (yincluding any existing Lender) existing Revolving Commitments that agrees to provide a portion of any Class such Incremental Facility (each an “Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan CommitmentsFacility Amendment”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify ; provided that:
(i) the aggregate principal amount of all Incremental Facilities incurred after the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, Third Amendment Effective Date shall not exceed $75,000,000;
(ii) the date on subject to Section 1.07 (which such increase shall become effective (the “Increase Effective Date”prevail), and no Default shall exist on the effective date of such Incremental Facility or would exist after giving effect to such Incremental Facility;
(iii) subject to Section 1.07 (which shall prevail), the identity representations and warranties of each Lender Loan Party contained in Article V or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemedDocument, unless or which are contained in any report, certificate or similar document executed and delivered by the context otherwise requiresBorrowers or any other Loan Party and furnished at any time under or in connection herewith or therewith, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made or furnished pursuant to Article II, Article V or Sections 7.01, 7.02 or 7.03 of this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided thatAgreement, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or on and as of the effective date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects if qualified as of such earlier date; CHAR1\1858684v2
(iv) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(v) each Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and integral multiples of $500,000 in excess thereof;
(vi) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(vii) the Borrowers shall deliver to the Administrative Agent:
(A) a certificate of each Loan Party dated as of the effective date of such Incremental Facility signed by materialitya Responsible Officer of such Loan Party (1) immediately prior tocertifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (2) in the case of the Borrowers, certifying that, before and immediately after giving effect toto such Incremental Facility, the initial borrowing conditions set forth in clauses (ii) and (iii) of this Section 2.01(c) above are satisfied;
(B) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility; and
(C) subject to Section 1.07 (which shall prevail), a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (C) assuming that any then proposed Incremental Revolving Increase or Incremental Term Facility is fully drawn) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 recomputed as of the end of the Applicable Period;
(viii) in the case of an Incremental Term Facility:
(A) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that (1) the final maturity of such Incremental Term Facility shall not be earlier than the latest maturity date of any outstanding term loan under this Agreement, if any, and (2) the Weighted Average Life to Maturity of such Incremental Term Facility shall not be shorter than the Weighted Average Life to Maturity of any outstanding term loan under this Agreement, if any; and
(B) such Incremental Term Facility shall share ratably in any mandatory prepayments of the other term loans, if any, under this Agreement pursuant to such Acquisition-Related Incremental Commitment.
Section 2.05(b) (c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, or otherwise provide for more favorable prepayment treatment for the avoidance of doubtthen outstanding term loans under this Agreement) and shall have ratable voting rights as the other term loans, differences in upfront feesif any, under this Agreement (or otherwise provide for more favorable voting rights for the then outstanding term loans under this Agreement).
(dix) With respect to in the case of any Incremental Revolving Credit Commitments, Increase: CHAR1\1858684v2
(A) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins but excluding upfront fees payable solely to the extent Lenders under such Incremental Revolving Increase) applicable to the Revolving Commitments and Revolving Loans;
(B) if any Advances or Letters of Credit of the relevant Class subject to such Approved Increase Revolving Loans are outstanding on the date of such increase, (1) each Lender providing such Incremental Revolving Increase Effective Dateshall make Revolving Loans, each the proceeds of which shall be applied by the Administrative Agent to prepay Revolving Loans of the existing Lenders, in an amount necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Lenders of such Class having with a Revolving Commitment and (2) the Borrowers shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans of existing Lenders; and
(C) the existing Lenders with a Revolving Commitment shall on the effective date of such Class prior Incremental Revolving Increase be deemed to have made such assignments (which assignments shall not be subject to the Increase Effective Date (requirements set forth in Section 11.06(b)) of the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and outstanding participation interests in Letters of Credit on and Swing Line Loans to the Lenders providing such Incremental Revolving Increase Effective Date and the Administrative Agent may make such adjustments to the Register as shall be are necessary in order so that, after giving effect to all such assignments and purchasesadjustments, each Lender with a Revolving Commitment (including the Lenders providing such Advances and Incremental Revolving Increase) will hold participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect Swing Line Loans equal to such Incremental Revolving Credit Commitmentsits pro rata share thereof.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Forward Air Corp)
Incremental Facilities. The Borrowers may at any time and from time to time, upon prior written notice by the applicable Borrower to the Administrative Agent, increase the Aggregate Revolving A Commitments (but not the Letter of Credit Sublimit, the Swing Line Sublimit or the Foreign Borrower Sublimit (except as otherwise set forth in the definition therein)) and/or the Aggregate Revolving B Commitments and/or establish one or more Incremental Term Loans, by a maximum aggregate amount not to exceed the Incremental Amount, as follows (in each case, subject to Section 1.02(d)):
(a) The Borrowers may at any time and from time to time, upon prior written notice by the applicable Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity DateAdministrative Agent, increase the Aggregate Revolving A Commitments (but not the Letter of Credit Sublimit, the Swing Line Sublimit or the Foreign Borrower Sublimit (except as otherwise set forth in the definition therein)) with additional Revolving A Commitments from any existing Revolving A Lender or new Revolving A Commitments from any other Person selected by written notice the Company and reasonably acceptable to the Administrative Agent, elect to request an the L/C Issuer and the Swing Line Lender; provided that:
(i) any such increase in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount 10,000,000 and in integral multiples of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, $1,000,000 in excess thereof;
(ii) no Event of Default shall exist and be continuing at the date on which time of any such increase shall become effective (the “Increase Effective Date”), and increase;
(iii) no existing Revolving A Lender shall be under any obligation to increase its Revolving A Commitment and any such decision whether to increase its Revolving A Commitment shall be in such Revolving A Lender’s sole and absolute discretion;
(1) any new Revolving A Lender shall join this Agreement by executing such joinder documents required by the identity Administrative Agent and/or (2) any existing Revolving A Lender electing to increase its Revolving A Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as a condition precedent to such increase, (1) the applicable Borrower shall deliver to the Administrative Agent (x) a certificate of each Lender or other Eligible Transferee to whom Credit Party that has guaranteed the Borrower proposes any portion Obligations of such Revolving Commitments or Incremental Term Loan Commitments, Borrower dated as applicable, be allocated and of the amounts date of such allocations, which Lender increase signed by an Authorized Officer of such Credit Party certifying and attaching the resolutions adopted by such Credit Party approving or other Eligible Transferee shall reasonably acceptable consenting to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or such increase and (y) a portion certificate of the Incremental Revolving Credit Commitments or Incremental Term Loan CommitmentsCompany signed by an Authorized Officer of the Company certifying that, as applicable(A) before and after giving effect to such increase, may elect or decline, (I) the representations and warranties contained in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, without the consent of any other Lender, effect such amendments to this Agreement Article V and the other Loan Documents as may be necessary or appropriate, in the opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be are true and correct in all material respects (or in all respects or, if qualified by materialitymateriality or reference to Material Adverse Effect, in all respects) immediately prior toon and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date and (II) no Event of Default exists and (B) immediately after giving pro forma effect toto the increase of the Aggregate Revolving A Commitments (assuming for such calculation that such increase is fully drawn), the initial borrowing Company would be in compliance with the financial covenants set forth in Section 7.08 and 7.09 recomputed as of the end of the period of twelve months most recently ended for which the Company has delivered financial statements pursuant to Section 6.01(a) or (b); (2) the Company shall deliver to the Administrative Agent customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender, dated as of the effect date of such Acquisitionincrease; and (3) the Company shall deliver to the Administrative Agent such amendments to the Collateral Documents as the Administrative Agent may deem necessary in connection with such increase; and
(vi) Schedule 2.01 shall be deemed revised to include any increase in the Aggregate Revolving A Commitments pursuant to this Section 2.18(a) and to include thereon any Person that becomes a Lender pursuant to this Section 2.18(a). The Borrowers shall prepay any Revolving A Loans owing by them and outstanding on the date of any such increase (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving A Loans ratable with any revised Revolving A Commitments arising from any non-Related Incremental Commitmentratable increase in the Revolving A Commitments under this Section.
(b) The Borrowers may at any time and from time to time, upon prior written notice by the applicable Borrower to the Administrative Agent, increase the Aggregate Revolving B Commitments with additional Revolving B Commitments from any existing Revolving B Lender or new Revolving B Commitments from any other Person selected by the Company and acceptable to the Administrative Agent, the L/C Issuer and the Swing Line Lender; provided that:
(i) any such increase shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) no Event of Default shall exist and be continuing at the time of any such increase;
(iii) no existing Revolving B Lender shall be under any obligation to increase its Revolving B Commitment and any such decision whether to increase its Revolving B Commitment shall be in such Revolving B Lender’s sole and absolute discretion;
(1) any new Revolving B Lender shall join this Agreement by executing such joinder documents required by the Administrative Agent and/or (2) any existing Revolving B Lender electing to increase its Revolving B Commitment shall have executed a commitment agreement reasonably satisfactory to the Administrative Agent;
(v) as a condition precedent to such increase, (1) the applicable Borrower shall deliver to the Administrative Agent (x) a certificate of each Credit Party that has guaranteed the Obligations of such Borrower dated as of the date of such increase signed by an Authorized Officer of such Credit Party certifying and attaching the resolutions adopted by such Credit Party approving or consenting to such increase and (y) a certificate of the Company signed by an Authorized Officer of the Company certifying that, (A) before and after giving effect to such increase, (I) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) on and as of the date of such increase, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, if qualified by materiality or reference to Material Adverse Effect, in all respects) as of such earlier date and (II) no Event of Default exists and (B) immediately after giving pro forma effect to the increase of the Aggregate Revolving B Commitments (assuming for such calculation that such increase is fully drawn), the Company would be in compliance with the financial covenants set forth in Section 7.08 and 7.09 recomputed as of the end of the period of twelve months most recently ended for which the Company has delivered financial statements pursuant to Section 6.01(a) or (b); (2) the Company shall deliver to the Administrative Agent customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender, dated as of the effect date of such increase; and (3) the Company shall deliver to the Administrative Agent such amendments to the Collateral Documents as the Administrative Agent may deem necessary in connection with such increase; and
(vi) Schedule 2.01 shall be deemed revised to include any increase in the Aggregate Revolving B Commitments pursuant to this Section 2.18(a) and to include thereon any Person that becomes a Lender pursuant to this Section 2.18(a). The Borrowers shall prepay any Revolving B Loans owing by them and outstanding on the date of any such increase (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Revolving B Loans ratable with any revised Revolving B Commitments arising from any non-ratable increase in the Revolving B Commitments under this Section.
(c) The Borrowers may at any time and from time to time, upon prior written notice by the applicable Borrower to the Administrative Agent, institute an Incremental Term Loan; provided that:
(i) the applicable Borrower (in consultation and coordination with the Administrative Agent) shall obtain commitments for the amount of such Incremental Term Loan from existing Lenders or other Persons reasonably acceptable to the Administrative Agent (such consent not to be unreasonably withheld), which Lenders shall join this Agreement as Incremental Term Lenders by executing an Incremental Term Loan Lender Joinder Agreement;
(ii) any such Incremental Term Loan shall be in a minimum principal amount of $10,000,000 and in integral multiples of $1,000,000 in excess thereof;
(iii) subject to Section 1.02(d), no Event of Default shall exist and be continuing at the time of any such institution;
(iv) no existing Lender shall be under any obligation to become an Incremental Term Lender and any such decision whether to become an Incremental Term Lender shall be in such Lender’s sole and absolute discretion;
(v) the Incremental Term Loan Maturity Date for such Incremental Term Loan shall be as set forth in the Incremental Term Loan Lender Joinder Agreement relating to such Incremental Term Loan; provided, that such date shall not be earlier than the Latest Maturity Date;
(vi) the scheduled principal amortization payments under such Incremental Term Loan shall be as set forth in the Incremental Term Loan Lender Joinder Agreement relating to such Incremental Term Loan; provided, that the weighted average life to maturity of such Incremental Term Loan shall not be shorter than the then-remaining weighted average life to maturity of the Initial Term Loan;
(vii) the currency of such Incremental Term Loan shall be as set forth in the Incremental Term Loan Lender Joinder Agreement;
(viii) each Incremental Term Loan shall rank pari passu in right of payment and security with the Obligations and shall be secured only by the Collateral and shall be guaranteed only by the Guarantors;
(ix) other than as set forth in clauses (v), (vi) and (vii) above, such Incremental Term Loan shall have terms and provisions conditions that are the same as the then-existing Term Loan(s) or, if not consistent with the terms of Loans made pursuant to an Approved Increase the then-existing Term Loan(s), shall be identical reasonably satisfactory to the terms and Administrative Agent (it being agreed that the following shall be reasonably satisfactory to the Administrative Agent: (A) covenants or other provisions applicable only to periods after the Latest Maturity Date of the then-existing Term Loans or that are added for the benefit of the Administrative Agent and the Lenders under the then-existing Term Loans and (B) to the relevant Class of Loans and/or Commitments subject extent required by the lenders providing the Incremental Term Loan, customary “most-favored-nation” protection, call protection, and an excess cash flow prepayment, in each case, which may be applicable solely with respect to such Approved Increase immediately prior to such Increase Effective Date (other thanIncremental Term Loans; provided, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitmentsthat, to the extent any Advances or Letters an excess cash flow prepayment is required in connection with the establishment of an Incremental Term Loan, such excess cash flow mandatory prepayment shall be applied ratably to all then-existing Term Loans);
(x) as a condition precedent to such institution, (1) the applicable Borrower shall deliver to the Administrative Agent (x) a certificate of each Credit Party that has guaranteed the Obligations of such Borrower dated as of the relevant Class subject date of such institution signed by an Authorized Officer of such Credit Party certifying and attaching the resolutions adopted by such Credit Party approving or consenting to such Approved Increase are outstanding on the Increase Effective Dateinstitution, each and (y) a certificate of the Lenders Company signed by an Authorized Officer of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”)Company, and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order certifying that, after giving effect to all such assignments (A) before and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
institution and subject to Section 1.02(d), (eI) The Incremental Loan Commitments the representations and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement warranties contained in Article V and the other Loan DocumentsDocuments are true and correct in all material respects on and as of the date of such increase, except to the extent that such representations and shallwarranties specifically refer to an earlier date, without limiting in which case they are true and correct in all material respects as of such earlier date and (II) no Event of Default exists and (B) subject to Section 1.02(d), immediately after giving pro forma effect to the foregoinginstitution of the Incremental Term Loan, benefit equally the Company would be in compliance with the financial covenants set forth in Section 7.08 and 7.09 recomputed as of the end of the period of twelve months most recently ended for which the Company has delivered financial statements pursuant to Section 6.01(a) or (b); (2) the Company shall deliver to the Administrative Agent customary opinions of legal counsel to the Credit Parties, addressed to the Administrative Agent and each Lender, dated as of the effect date of such institution; (3) the Company shall deliver to the Administrative Agent such amendments to the Collateral Documents as the Administrative Agent may deem necessary in connection with such institution;
(xi) such Incremental Term Loan shall share ratably from in any prepayments of any existing Term Loan pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for any existing Term Loan) and shall have ratable voting rights as any existing Term Loan (or otherwise provide for more favorable voting rights for the guarantees existing Term Loans); and
(xii) Schedule 2.01 shall be deemed revised to reflect the commitments and security interests created by commitment percentages of the Incremental Term Lenders as set forth in the Incremental Term Loan DocumentsLender Joinder Agreement.
Appears in 1 contract
Sources: Credit Agreement (EnerSys)
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, Borrowers may by written notice to the Agent, Administrative Agent elect to request an increase in request, prior to the Latest Maturity Date, additional term loans hereunder (x) existing Term Loans of any Class (the commitments theretosuch additional term loans, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit CommitmentsLoans” and, together with and the Incremental Term Loan Commitmentscommitments therefor, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by ) in an aggregate amount, principal amount (x) for all such increases under this Section 2.18, that does additional term loans not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount excess of $5,000,000 150.0 million and (y) on any Incremental Closing Date, not less than, unless otherwise agreed approved by the Administrative Agent, the higher of (I) $25.0 million and (II) any integral multiple of $5.0 million in excess of $25.0 million. Each such notice shall specify (iA) the amount date (each, an “Incremental Closing Date”) on which the Borrowers propose that the Incremental Loans shall be made, which shall be a date not less than 10 Business Days (or such lesser number of the proposed increase, if any, days as may be acceptable to the existing Revolving Commitments or Term Loans, as applicable, (iiAdministrative Agent) after the date on which such increase shall become effective (notice is delivered to the “Increase Effective Date”), Administrative Agent and (iiiB) the identity of each Lender or other Eligible Transferee Person that is an eligible assignee pursuant to Section 13.6(b) to whom the Borrower proposes Borrowers propose any portion of such Revolving Incremental Commitments or Incremental Term Loan Commitments, as applicable, be allocated (each, an “Incremental Lender”) and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that (i) no Incremental Lender that is not an existing Lender, an Affiliate of a Lender or an Approved Fund shall provide Incremental Loans unless the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed), (ii) any Affiliated Lender providing an Incremental Loan shall be subject to the same restrictions set forth in Section 13.6(f),(g) and (h) as it would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Loans and (iii) any Lender or other Eligible Transferee approached to provide all or a portion of the any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, Loans may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Loans. Such Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless made on the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Closing Date; provided that, subject to Section 1.7, each that (1) no Default or Event of the conditions set forth in Section 3.2 Default shall be satisfied (or waived) prior to the effectiveness of exist on such Incremental Revolving Credit Commitments Closing Date before or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant after giving effect to such Acquisition-Related Incremental Commitment, Loans; (2) all representations and warranties made by any Credit Party contained herein or in the specified representations other Credit Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the date of such Incremental Closing Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date); provided that, if qualified the proceeds of such Incremental Loans are used to consummate a Permitted Acquisition, the only representations and warranties that shall be required to be true and correct are those set forth in Sections 8.2. 8.3, 8.5, 8.7, 8.16, 8.20 (provided that the target of such Permitted Acquisition shall be subject to Section 9.10), 8.21 and 8.23; (3) the Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by materiality) immediately prior tothe Borrowers, the Incremental Lenders and the Administrative Agent, and immediately each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(c); (4) the Credit Parties shall deliver or cause to be delivered any legal opinions or other documents (including without limitation guarantee and collateral reaffirmation agreements) reasonably requested by Administrative Agent in connection with any such transaction; (5) the Consolidated Senior Secured Net Debt to Consolidated EBITDA Ratio as of the Incremental Closing Date after giving effect toto the Incremental Loans on a Pro Forma Basis (but without counting any cash or Permitted Investments representing proceeds of such Incremental Loans in calculating clause (y) of the definition of Consolidated Senior Secured Net Debt) shall be less than or equal to 4.0 to 1.0; (6) the maturity date of such Incremental Loans shall be no earlier than the Initial Loan Maturity Date; (7) the Weighted Average Life to Maturity of such Incremental Loans shall be no shorter than the Weighted Average Life to Maturity, as of such Incremental Closing Date, of the initial borrowing Initial Loans outstanding as of such Incremental Closing Date; (8) the All-In Yield of the Incremental Loans shall be determined by the Borrowers and the applicable Incremental Lenders (provided that the All-In Yield applicable to such Incremental Loans shall not be greater than the All-In Yield for the Initial Loans plus 50 basis points per annum unless the ABR Margin and the Eurodollar Margin are increased so as to cause the All-In Yield for the Initial Loans to equal the All-In Yield for such Incremental Loans minus 50 basis points per annum); (9) such Incremental Loans shall be secured by a pari passu lien on the Collateral securing the Loans and shall be guaranteed by all of the Subsidiary Guarantors; and (10) such Incremental Loans shall be on terms and pursuant to a fully executed Joinder Agreement (provided that, to the extent such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant documentation are not consistent with the existing Credit Documents (except to an Approved Increase the extent permitted by clause (6), (7) or (8) above), they shall be identical reasonably satisfactory to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront feesAdministrative Agent).
(db) With respect to Any Incremental Loans made on an Incremental Closing Date shall be designated a separate series (a “Series”) of Incremental Loans for all purposes of this Agreement. On any Incremental Revolving Credit CommitmentsClosing Date on which any Incremental Commitments of any Series are effective, subject to the extent any Advances or Letters of Credit satisfaction of the relevant Class subject to such Approved Increase are outstanding on foregoing terms and conditions and any additional terms and conditions set forth in the Increase Effective Dateapplicable Joinder Agreement, (i) each Incremental Lender with an Incremental Commitment of the Lenders of such Class having a Revolving applicable Series shall make an Incremental Loan to the Borrower in an amount equal to its Incremental Commitment of such Class prior Series, and (ii) each Incremental Lender of any Series shall become a Lender hereunder with respect to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender Incremental Commitment of such Class which is acquiring an Series and the Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share Loans of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans Series made pursuant thereto, . The Incremental Commitment and Incremental Loans established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees Guarantees and security interests created by the Loan Security Documents. The Administrative Agent, the Collateral Agent and the Credit Parties (without the consent any Lender that would otherwise be required under Section 13.1) may effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effectuate the provisions of this Section 2.15.
Appears in 1 contract
Incremental Facilities. The Borrower may from time to time add one or more tranches of term loans or increase an outstanding tranche of term loan (each an “Incremental Term Facility”), and/or increase the Aggregate Revolving A Commitments (each such increase, an “Incremental Revolving A Increase”; each Incremental Term Facility and each Incremental Revolving A Increase are collectively referred to as, an “Incremental Facility”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(a) The Borrower may, on one or more occasions the aggregate principal amount of all Incremental Facilities requested after the Restatement First Amendment Effective Date shall not exceed: (i) at any time Revolving B Commitments are outstanding or Total Revolving B Outstandings are greater than $0, $50,000,000 and prior to (ii) after the Maturity DateRevolving B Commitments have been terminated and the Total Revolving B Outstandings are $0, by written notice to the Agent, elect to request an increase in the greater of (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or $200,000,000 and (y) existing Revolving Commitments 50% of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount Consolidated EBITDA as of the proposed increase, if any, to end of the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on period of four Fiscal Quarters most recently for which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made has delivered financial statements pursuant to this Section 2.18.6.01(a) or (b);
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.71.07, each of no Default shall exist on the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness effective date of such Incremental Revolving Credit Commitments Facility or the funding of the relevant would exist after giving effect to such Incremental Term Loan Commitments; provided, further, that, with respect Facility;
(c) subject to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”)Section 1.07, the condition set forth representations and warranties of each Loan Party contained in Section 3.2(a) shall be deemed to have been satisfied so long asArticle V or any other Loan Document, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitmentor which are contained in any document furnished at any time under or in connection herewith or therewith, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior toon and as of the effective date of such Incremental Facility, except to the extent that such representations and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant warranties specifically refer to an Approved Increase earlier date, in which case they shall be identical to the terms true and provisions applicable to the relevant Class correct as of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).earlier date;
(d) With respect no existing Lender shall be under any obligation to provide any commitment to any Incremental Revolving Credit Commitments, Facility and any such decision whether to provide a commitment to an Incremental Facility hall be in such ▇▇▇▇▇▇’s sole and absolute discretion;
(e) each Incremental Facility shall be in an aggregate principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(f) each Person providing a commitment to an Incremental Facility shall qualify as an Eligible Assignee;
(g) the Borrower shall deliver to the extent any Advances or Letters Administrative Agent:
(i) a certificate of Credit each Loan Party dated as of the relevant Class date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Facility, the conditions in clause (b) and (c) above are true and correct;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(iii) opinions of legal counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender (including each Person providing a commitment to an Incremental Facility), dated as of the effective date of such Incremental Facility Amendment; and
(iv) subject to Section 1.07, evidence that after giving effect to the incurrence of such Approved Incremental Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (iv) assuming that any then proposed Incremental Revolving A Increase is fully drawn) the Loan Parties would be in compliance with the financial covenants set forth in Section 6.03 recomputed as of the end of the period of four Fiscal Quarters most recently for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b);
(h) in the case of an Incremental Term Facility, the interest rate, interest rate margins, fees, discount, prepayment premiums, if any, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(i) the final maturity of such Incremental Term Facility shall not be earlier than the latest Maturity Date hereunder; and
(ii) the Weighted Average Life to Maturity of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life to Maturity of any other then existing Incremental Term Facility; and
(iii) such Incremental Term Facility shall share ratably in any prepayments of any other then existing Incremental Term Facility (or otherwise provide for more favorable prepayment treatment for the then outstanding Incremental Term Facilities) and shall have ratable voting rights as the other then outstanding Incremental Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Incremental Term Facilities);
(i) in the case of any Incremental Revolving A Increase:
(i) such Incremental Revolving A Increase shall have the same terms (including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders under such Incremental Facility) applicable to the Aggregate Revolving A Commitments;
(ii) if any Revolving A Loans are outstanding on the date of such increase, (x) each Lender providing such Incremental Revolving A Increase Effective Dateshall make Revolving A Loans, each the proceeds of which shall be applied by the Administrative Agent to prepay Revolving A Loans of the existing Revolving A Lenders, in an amount necessary such that after giving effect thereto the outstanding Revolving A Loans are held ratably among all of the Revolving A Lenders with a Revolving A Commitment and (y) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving A Loans of existing Revolving A Lenders; and
(iii) the existing Revolving A Lenders with a Revolving A Commitment shall on the effective date of such Class having a Incremental Revolving Commitment of A Increase be deemed to have made such Class prior assignments (which assignments shall not be subject to the Increase Effective Date (requirements set forth in Section 11.06(b)) of the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and outstanding participation interests in Letters of Credit on and Swing Line Loans to the Lenders providing such Incremental Revolving A Increase Effective Date and the Administrative Agent may make such adjustments to the Register as shall be are necessary in order so that, after giving effect to all such assignments and purchasesadjustments, each Revolving A Lender with a Revolving A Commitment (including the Lenders providing such Advances and Incremental Revolving A Increase) will hold participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect Swing Line Loans equal to such Incremental Revolving Credit Commitmentsits pro rata share thereof.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Trex Co Inc)
Incremental Facilities. (a) The Borrower may, on elect to request the establishment of one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase additional tranches of term loans or increases in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental New Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does amount not exceed in excess of the Maximum Incremental Facilities Amount. Such Approved Increase shall Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be in a minimum principal amount of $5,000,000 unless otherwise agreed approved by the AgentAdministrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Term Loan Commitments obtained on or prior to such date) which may be Incurred in Dollars, Euros or Pounds Sterling. Each such notice shall specify The Borrower may approach any Lender or any Person (iother than a natural Person) the amount to provide all or a portion of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender offered or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental New Term Loan Commitments, as applicable, Commitments may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental a New Term Loan Commitment. In each case, such New Term Loan Commitments shall become effective as applicableof the applicable Increased Amount Date; provided that (i) no Event of Default (except in connection with a Limited Condition Transaction, and other Permitted Acquisition or Permitted Investment, in which case the Revolving Commitments standard shall be no Event of Default under Section 11.1 or Terms Loans, as applicable, Section 11.5) shall only be increased exist on such Increased Amount Date before or after giving effect to the extent of Incremental Revolving Credit Commitments or Incremental such New Term Loan Commitments, as applicable, and subject to Section 1.12, (ii) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to be provided by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or Eligible Transferees. Any Eligible Transferee who agrees (b) as part of a Series of existing Term Loans for all purposes of this Agreement.
(b) [Reserved].
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to provide such Incremental Revolving Credit Commitment or Incremental the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall execute make a joinder agreement Loan to which the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Eligible Transferee Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the then existing Initial Term Loans as calculated without giving effect to any prepayments made in connection with the Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any broadly syndicated New Term Loan Incurred pursuant to clause (i) of the definition of Maximum Incremental Facilities Amount that matures earlier than the date that is two years after the Initial Term Loan Maturity Date, only during the period commencing on the Closing Date and ending on the date that is six months after the Closing Date, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans of the same currency by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans of the same currency shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans of the same currency is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50%; provided that, any amendments to the applicable margin on the Initial Term Loans that became effective subsequent to the Restatement Effective Date but prior to the time of such New Term Loans shall be included in the calculation of the Effective Yield (the terms of this proviso to this clause (iii), the “MFN Protection”); and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (whose it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent thereto shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is added for the benefit of any corresponding Term Loans remaining outstanding after the issuance or incurrence of such Indebtedness and (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date); provided, further, that (x) clauses (i) and (ii) shall not be unreasonably withheld apply to up to an amount equal to the greater of (A) $480,000,000 or delayed(B) are party 100% of Consolidated EBITDA for the four consecutive fiscal quarters of the Borrower most recently ended on or prior to such date of determination in respect of New Term Loans or Permitted Other Indebtedness (as selected by the Borrower) (the “Increase JoinderMaturity Carveout Amount”). If such proposed L▇▇▇▇▇ agrees ) and (y) the MFN Protection shall not apply to execute an Increase Joinder (I) up to the greater of (A) $480,000,000 and (B) 100.0% of Consolidated EBITDA for the most recently ended Test Period (as selected by the Borrower) of New Term Loans and (II) any New Term Loans Incurred in connection with an Approved Increase, such Increase a Permitted Acquisition or other Permitted Investment.
(e) [Reserved].
(f) Each Joinder Agreement may, without the consent of any other LenderLenders, effect such technical and corresponding amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions provision of this Section 2.182.14.
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). Unless otherwise specifically In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(g) below), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided hereinin the applicable Extension Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, all references no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Agreement and Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the penultimate sentence of Section 5.1(a). No Lender shall have any other obligation to agree to have any of its Term Loans of any Existing Term Loan Document Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(i) [Reserved].
(ii) Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans converted into Extended Term Loans shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans. In the event that the aggregate amount of Term Loans of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans requested pursuant to the Extension Request or Loans of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans on a pro rata basis based on the amount of Loans in each such Extension Election.
(iii) Extended Term Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.18.
(b2.14(g)(iv) The Incremental Loan Commitments with respect and notwithstanding anything to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions contrary set forth in Section 3.2 13.1, shall be satisfied (or waived) prior not require the consent of any Lender other than the Extending Lenders with respect to the effectiveness Extended Term Loans established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of such Incremental Revolving Credit Commitments Extended Term Loans in an aggregate principal amount that is less than $10,000,000. In addition to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment (x) shall amend the scheduled amortization payments pursuant to Section 2.5 or the funding applicable Joinder Agreement with respect to the Existing Term Loan Class from which the Extended Term Loans were converted to reduce each scheduled Repayment Amount for the Existing Term Loan Class in the same proportion as the amount of Term Loans of the relevant Incremental Existing Term Loan Commitments; provided, further, that, Class is to be converted pursuant to such Extension Amendment (it being understood that the amount of any Repayment Amount payable with respect to any Incremental individual Term Loan Commitment of such Existing Term Loan Class that is not an Extended Term Loan shall not be reduced as a result thereof) and (y) may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14(g) and without limiting the generality or applicability of Section 13.1 to any Section 2.14 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional Amendment”) to this Agreement and the primary purpose other Credit Documents; provided that such Section 2.14 Additional Amendments are within the requirements of financing a Limited Condition Acquisition Section 2.14(g)(i) and do not become effective prior to the time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans provided for in any Extension Amendment) by such of the Lenders, Credit Parties and other parties (if any) as may be required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1.
(iv) Notwithstanding anything to the contrary contained in this Agreement, on any date on which any Existing Class is converted to extend the related scheduled maturity date(s) in accordance with clause (i) above (an “Acquisition-Related Incremental CommitmentsExtension Date”), the condition set forth in Section 3.2(a) aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to have been satisfied the aggregate principal amount of Extended Term Loans so long asconverted by such Lender on such date, as of and the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations Extended Term Loans shall be true and correct in all material respects established as a separate Class of Term Loans (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to together with any other Extended Term Loans so established on such Acquisition-Related Incremental Commitmentdate).
(cv) The terms Administrative Agent and provisions of Loans made pursuant to an Approved Increase shall be identical the Lenders hereby consent to the terms and provisions applicable to consummation of the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date transactions contemplated by this Section 2.14 (other thanincluding, for the avoidance of doubt, differences payment of any interest, fees, or premium in upfront fees).
(d) With respect to of any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of Extended Term Loans on such terms as may be set forth in the relevant Class subject to Extension Amendment) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to extension or any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held other transaction contemplated by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents2.14.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Administrative Agent, elect to request an increase the establishment of one or more additional tranches of term loans or increases in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental New Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such increases New Term Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Pounds Sterling. In connection with the incurrence of any Indebtedness under this Section 2.182.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that does the New Term Loan Commitments do not exceed the Maximum Incremental Facilities Amount. Such Approved Increase , which certificate shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by reasonable detail and shall provide the Agent. Each calculations and basis therefor and, subject to reclassification as set forth in Section 10.1, classify such notice shall specify Indebtedness as being incurred under clause (i) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, clause (ii) of the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity definition of each Maximum Incremental Facilities Amount. The Borrower may approach any Lender or any Person (other Eligible Transferee than a natural Person) to whom the Borrower proposes any provide all or a portion of such Revolving Commitments or Incremental the New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender offered or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental New Term Loan Commitments, as applicable, Commitments may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental a New Term Loan Commitment. In each case, as applicableon each applicable Increased Amount Date (subject to Section 1.12), and the Revolving such New Term Loan Commitments shall be subject to (i) no Event of Default (except in connection with an acquisition or Terms Loansinvestment (including any Permitted Acquisition or Permitted Investment), as applicable, no Event of Default under Section 11.1 or Section 11.5) shall only be increased exist on such Increased Amount Date before or after giving effect to the extent of Incremental Revolving Credit Commitments or Incremental such New Term Loan Commitments, as applicable, and subject to Section 1.12, (ii) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable. No Lender shall have any obligation to provide any New Term Loan Commitments pursuant to this Section 2.14(a). Any New Term Loans shall, at the election of the Borrower and agreed to be provided by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or Eligible Transferees. Any Eligible Transferee who agrees (b) as part of a Series of existing Term Loans for all purposes of this Agreement.
(b) [Reserved].
(c) New Term Loan Commitments of any Series shall be subject to provide such Incremental Revolving Credit Commitment or Incremental the satisfaction of the foregoing and following terms and conditions, each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall execute make a joinder agreement Loan to which the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Eligible Transferee 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 Agent New Term Loans of such Series made pursuant thereto.
(whose consent thereto d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall not be unreasonably withheld or delayedon terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) are party the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees weighted average life to execute an Increase Joinder maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the then existing Initial Term Loans as calculated without giving effect to any prepayments made in connection with an Approved Increasethe Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any New Term Loan, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans of like currency by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50% (the terms of this proviso, the “MFN Protection”); and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, such Increase financial maintenance covenant shall also be added for the benefit of the corresponding existing Loans, and no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date).
(e) [Reserved].
(f) Each Joinder Agreement may, without the consent of any other LenderLenders, effect such technical and corresponding amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions provision of this Section 2.182.14.
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). Unless otherwise specifically In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the Credit Parties (taken as a whole) (as determined in good faith by the Borrower) than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth below in paragraph (iv) of this Section 2.14(g)), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided hereinin the applicable Extension Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, all references no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Agreement and Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any other obligation to agree to have any of its Term Loans of any Existing Term Loan Document Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) [Reserved].
(iii) Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans subject to such Extension Request converted into Extended Term Loans, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, subject to such Extension Request that it has elected to convert into Extended Term Loans. In the event that the aggregate amount of Term Loans subject to Extension Elections exceeds the amount of Extended Term Loans requested pursuant to the Extension Request, Term Loans subject to Extension Elections shall be converted to Extended Term Loans, on a pro rata basis based on the amount of Term Loans included in each such Extension Election.
(iv) Extended Term Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the final sentence of this Section 2.18.
(b2.14(g)(iv) The Incremental Loan Commitments with respect and notwithstanding anything to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions contrary set forth in Section 3.2 13.1, shall be satisfied (or waived) prior not require the consent of any Lender other than the Extending Lenders with respect to the effectiveness Extended Term Loans established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of such Incremental Revolving Credit Commitments Extended Term Loans in an aggregate principal amount that is less than $10,000,000. In addition to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment (x) shall amend the scheduled amortization payments pursuant to Section 2.5 or the funding applicable Joinder Agreement with respect to the Existing Term Loan Class from which the Extended Term Loans were converted to reduce each scheduled Repayment Amount for the Existing Term Loan Class in the same proportion as the amount of Term Loans of the relevant Incremental Existing Term Loan Commitments; provided, further, that, Class is to be converted pursuant to such Extension Amendment (it being understood that the amount of any Repayment Amount payable with respect to any Incremental individual Term Loan Commitment of such Existing Term Loan Class that is not an Extended Term Loan shall not be reduced as a result thereof) and (y) may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14(g) and without limiting the generality or applicability of Section 13.1 to any Section 2.14 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional Amendment”) to this Agreement and the primary purpose other Credit Documents; provided that such Section 2.14 Additional Amendments are within the requirements of financing a Limited Condition Acquisition Section 2.14(g)(i) and do not become effective prior to the time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans provided for in any Extension Amendment) by such of the Lenders, Credit Parties and other parties (if any) as may be required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1.
(v) Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Existing Term Loan Class is converted to extend the related scheduled maturity date(s) in accordance with clause (i) above (an “Acquisition-Related Incremental CommitmentsExtension Date”), the condition set forth in Section 3.2(a) aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to have been satisfied the aggregate principal amount of Extended Term Loans so long asconverted by such Lender on such date, as of and the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations Extended Term Loans shall be true and correct in all material respects established as a separate Class of Term Loans (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to together with any other Extended Term Loans so established on such Acquisition-Related Incremental Commitmentdate).
(cvi) The terms Administrative Agent and provisions of Loans made pursuant to an Approved Increase shall be identical the Lenders hereby consent to the terms and provisions applicable to consummation of the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date transactions contemplated by this Section 2.14 (other thanincluding, for the avoidance of doubt, differences payment of any interest, fees, or premium in upfront fees).
(d) With respect to of any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of Extended Term Loans on such terms as may be set forth in the relevant Class subject to Extension Amendment) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to extension or any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held other transaction contemplated by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents2.14.
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Incremental Facilities. (a) The Borrower may, on shall be entitled to enter into one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the incremental term loan facilities (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan CommitmentsFacility”) and/or one or more Incremental Revolver facilities (y) existing Revolving Commitments of any Class (the “Incremental Revolving Credit CommitmentsRevolver Facility” and, together with the Incremental Term Loan CommitmentsFacility, the “Incremental Loan CommitmentsFacilities”)) that will rank pari passu in right of payment with the Revolver Facility, the Delayed-Draw Term Facility and the Term Facility and will have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, the Revolver Facility, the Delayed-Draw Term Facility and the Term Facility, in a principal amount allocated between the Incremental Facilities determined by the Borrower (each increase that satisfies the terms x) in minimum amounts of at least $100,000,000 and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does (y) not to exceed the Maximum Incremental Facilities sum of (1) $750,000,000 plus (2) if the RCT Carve Out Support Rejection Notice shall have been issued and delivered prior to the Delayed-Draw Termination Date, the Delayed-Draw Term Facility Reduction Amount. Such Approved Increase shall be ; provided that in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify each case: (i) no Event of Default or event that upon the amount passage of time, the proposed increasegiving of notice, if anyor both, to would become an Event of Default (“Default”) under the existing Revolving Commitments Revolver Facility, the Delayed-Draw Term Facility or the Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender Facility then exists or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicablewould exist immediately after giving effect thereto, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to representations and warranties in the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects on and as of the date of the incurrence of such Incremental Facility (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitmentsor, to the extent any Advances or Letters such representation and warranties relate to an earlier date, they shall be true and correct in all material respects as of Credit such earlier date); (ii) such Incremental Facilities may be provided by then existing Lenders or, subject to the reasonable consent of the relevant Class subject Administrative Agent, other persons who become Lenders in connection therewith if such consent would be required for an assignment to any such Approved Increase are outstanding on Lender under the Increase Effective DateLoan Documentation (provided that no existing Lender will be obligated to provide such Incremental Facilities without its consent); (iii) solely with respect to an Incremental Revolver Facility, each of the Lenders pro forma compliance (assuming a full drawing of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”Incremental Revolver Facility) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all appropriate pro forma adjustments (but excluding all cash proceeds from such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance Incremental Revolver Facility) with their Pro Rata Share the Consolidated Superpriority Secured Net Debt Leverage Test for the most recently ended quarterly test period for which financial statements are available; (iv) the maturity date of such Class after giving effect Incremental Facilities shall be no earlier than the maturity date of the Revolver Facility, the Delayed-Draw Term Facility and the Term Facility, and such Incremental Facilities shall require no scheduled amortization or mandatory commitment reduction (other than pursuant to the same terms applicable to the Revolver Facility or the Term Facility, as applicable) prior to the final maturity of the Revolver Facility, the Delayed-Draw Term Facility and the Term Facility and, with respect to the Incremental Revolver Facility, shall be made pursuant to the same documentation, and (except as otherwise set forth in clause (v) below) shall be on the exact same terms, as are applicable to the Revolver Facility; (v) the interest rates, interest margins, any rate floors, fees, original issue and other funding discounts and premiums and (subject to clause (iv) above) amortization schedule applicable to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and Facility shall be entitled determined by the Borrower and the Lenders thereunder; provided that the total yield on the Incremental Term Facility or Incremental Revolver Facility (inclusive of interest rate floors and any original issue discount or upfront fees, but excluding any customary arrangement, administrative, advisory, origination or similar fees in connection therewith that are not paid to all of the benefits afforded byLenders providing the Incremental Facility) does not exceed the total yield on the initial Term Facility or initial Revolver Facility, as applicable, by more than 50 basis points, but the Borrower may increase the total yield on the initial Term Facility or initial Revolver Facility, as applicable, on or prior to the date of the incurrence of such Incremental Term Facility or Incremental Revolver Facility, as applicable, in order to comply with this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.proviso;
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Sources: Restructuring Support and Lock Up Agreement (Energy Future Holdings Corp /TX/)
Incremental Facilities. (ai) The Borrower mayFor the avoidance of doubt and notwithstanding any provision to the contrary set forth in this Agreement or any other Loan Document, on this Agreement may be amended (or amended and restated) at any time and from time to time to increase the Aggregate Revolving Commitments or to establish one or more occasions after the Restatement Effective Date and prior additional separate tranches of term loans (each such increase to the Maturity Date, by written notice Revolving Commitments and/or establishment of a new tranche term loans being referred to the Agent, elect herein as an “Incremental Facility,” and all of such increases and establishments being referred to request an increase in the (x) existing Term Loans of any Class (the commitments thereto, collectively as the “Incremental Term Loan CommitmentsFacilities”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with to be made to the Incremental Term Loan CommitmentsBorrower by an agreement in writing entered into by the Borrower, the “Incremental Loan Commitments”), Administrative Agent and each Person (each increase including any Lender) that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount of the proposed increase, if any, agree to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which provide any such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent such separate tranches of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent term loans (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, but without the 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 with the Revolving Commitment and/or term loan set forth in such amendments agreement; provided, however, that: (A) without the written consent of the Required Lenders, the aggregate principal amount of increases in the Revolving Commitments and/or separate term loans effected after the Closing Date pursuant to this Section 11.01(b) shall not exceed $250,000,000; (B) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect on a Pro Forma Basis to the incurrence of any such Incremental Facility and the concurrent retirement of any other Indebtedness of a Consolidated Party, the Loan Parties would be in compliance with the financial covenants set forth the in Section 8.11 as of the most recent fiscal quarter end for which the Administrative Agent has received the Required Financial Information; (C) no Default or Event of Default shall exist at the time of the amendment giving effect to any such increase in the Revolving Commitments and/or the making of a separate term loan, as applicable, becomes effective; and (D) no Lender shall be obligated to participate in any such increase by increasing its own commitment hereunder unless such Lender elects to do so in its sole discretion at the time of such increase. The terms applicable to any additional Revolving Commitments shall be the same as those applicable to the Original Revolving Commitments (after giving effect to any amendment in connection with the establishment of such additional Revolving Commitments), except as to (A) any related upfront fees which shall be as agreed between the Borrower and the applicable Lenders providing such additional Revolving Commitments and (B) certain mandatory commitment reductions with respect to the Original Revolving Commitments may be effected on a non-pro rata basis as described in Section 2.06. The terms applicable to any Incremental Facility structured as a separate term loan tranche (after giving effect to any amendment in connection with the establishment of such term loans), including in respect of pricing, amortization and maturity, shall be as agreed to between the Borrower and the Lenders providing such Incremental Facility (it being understood that general administrative and similar terms not specific to such Incremental Facility shall be as provided in this Agreement); provided, however, that (A) each such Incremental Facility structured as a separate term loan tranche may be provided the right to ratable (with the each other Incremental Facility structured as a separate term loan tranche) prepayment in connection with any voluntary or mandatory prepayment, (B) no more than 20% of the initial principal amount of any Incremental Facility structured as a separate term loan tranche shall amortize (pursuant to schedule amortization) prior to the Maturity Date and (C) the final maturity date of any Incremental Facility structured as a separate term loan tranche shall not occur prior to the Maturity Date or the final maturity date of any other then existing Incremental Facility structured as a separate term loan.
(ii) Any such amendment (or amendment and restatement) effected pursuant to Section 11.01(b)(i) shall amend the provisions of this Agreement and the other Loan Documents as may to set forth the terms of each Incremental Facility established thereby (including the amount and the final maturity thereof, any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be necessary or appropriate, payable thereon and any fees to be payable in the opinion respect thereof (in each case subject to any applicable restrictions set forth in subsection (i) of the Agent, this Section 11.01(b)) and to effect such other changes (including changes to the provisions of this Section 2.18. Unless otherwise specifically provided herein11.01(a), all references Section 2.05 and the definition of “Required Lenders”) as the Borrower and the Administrative Agent shall deem necessary or advisable in this Agreement and connection with the establishment of any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan CommitmentsFacility; provided, furtherhowever, thatthat no such agreement shall: (A) effect any change described in any of clauses (A), with respect (B), (C), (F) and (G) of Section 11.01(a) without the consent of each Person required to consent to such change under such clause (it being agreed, however, that any increase in the Aggregate Revolving Commitments or establishment of any Incremental Term Loan Commitment incurred for the primary purpose Facility consisting of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”)separate tranche of term loans will not, the condition set forth in Section 3.2(a) shall of itself, be deemed to have been satisfied so long as, as effect any of the date changes described in clauses (A), (B), (C), (F) and (G) of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”Section 11.01(a)(i), and that modifications to Section 2.12, Section 9.03 or the definition of “Required Lenders” or other provisions relating to voting provisions to provide the Persons providing the applicable Incremental Facility with the benefit of such provisions will not, by themselves, be deemed to effect any of the changes described in clauses (D) and (E) of Section 11.01(a)(i)), or (B) amend Article VII, VIII or IX in any manner that by its terms benefits one or more tranches, but not all tranches, of Loans or Commitments without the prior written consent of Lenders holding a majority in interest of the Revolving Post-Increase Commitments then existing, if the Lenders shall purchase from holding Revolving Commitments are not so benefited, and of Lenders holding a majority in interest of each Revolving Pre-Increase Lenderseparate tranche of term loans then existing and not so benefited, at (it being agreed that no provision requiring the principal amount thereofBorrower to prepay term loans of one or more Incremental Facilities with the proceeds of Dispositions, such interests in Involuntary Dispositions, issuances of Indebtedness, Equity Issuances or with the Advances and participation interests in Letters proceeds of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit excess cash flow will be held by Revolving Pre-Increase Lenders deemed to violate this clause). The loans, commitments and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share borrowings of such Class after giving effect to such any Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, Facility established pursuant to this Section 11.01(b) shall constitute Loans Loans, Commitments and Commitments Borrowings under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees Guaranty set forth in Article IV hereunder and the security interests and Liens created by the Loan Collateral Documents, and the Borrower shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the requirements of this sentence are satisfied after the establishment of any such Incremental Facility.
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Incremental Facilities. (a) The Borrower may, on one may at any time or more occasions from time to time after the Restatement Effective Date and prior to the Maturity Closing Date, by written notice delivered to the AgentAdministrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect to request an increase in the (x) existing Term Loans one or more additional Classes of any Class term loans (the commitments thereto“Incremental Term Loans”; such facilities, the “Incremental Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments”); provided that, at the time any such Incremental Term Loan Commitments”is made or effected (and after giving Pro Forma Effect thereto and the use of proceeds therefrom), except as set forth in the proviso to clause (b) and/or below, no Event of Default (yor, if the proceeds of the Incremental Facilities are to be used to consummate a Permitted Acquisition, no Event of Default under Section 11.1 or 11.5) existing Revolving Commitments shall exist or have occurred and be continuing after giving Pro Forma Effect thereto.
(b) Each tranche of any Class Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 (“Incremental Revolving Credit Commitments” andprovided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limits set forth in paragraph (a) above) and in minimum increments of $1,000,000 in excess thereof (or such other amounts as the Administrative Agent may reasonably agree). Subject to the proviso at the end of this Section 2.14(b), together with the aggregate amount (after giving Pro Forma Effect thereto and the use of the proceeds thereof) of (X) the Incremental Term Loan Commitments, the “Incremental Loan Commitments”Loans incurred or obtained pursuant to this Section 2.14(b), plus (each increase that satisfies Y) the terms and conditions aggregate principal amount of this Permitted Incremental Equivalent Indebtedness incurred or issued under Section 2.1810.1 shall not exceed, an “Approved Increase”)as of the date of incurrence or issuance of such Indebtedness, by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase Amount at such time; provided that Incremental Term Loans may be incurred without regard to the Maximum Incremental Facilities Amount and without regard to whether an Event of Default has occurred and is continuing, 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 (or substantially concurrently therewith) to prepay Term Loans (which prepayment, if an Event of Default is continuing, shall be in made on a minimum principal amount pro rata basis across all outstanding Types of $5,000,000 unless otherwise agreed by the Agent. Each such notice Term Loans) (and any such Incremental Term Loans shall specify be deemed to have been incurred pursuant to this proviso).
(A) The Incremental Term Loans (i) shall rank equal in right of payment with the amount of the proposed increase, if any, to the existing Revolving Commitments or Initial Term Loans, as applicable, (ii) no Incremental Facility shall be guaranteed or borrowed by entities other than the Credit Parties, (iii) shall not mature earlier than the Initial Term Loan Maturity Date, (iv) shall not have a shorter weighted average life to maturity than the then remaining Initial Term Loans, (v) shall have a maturity date on which such increase shall become effective (the “Increase Effective Date”subject to clause (iii)), an amortization schedule (subject to clause (iv)), and interest rates (iii) including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums for the identity of each Lender or other Eligible Transferee to whom Incremental Term Loans as determined by the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion lenders of the Incremental Revolving Credit Commitments or Term Loans; provided that, in the event that the Applicable Margins for any Incremental Term Loan CommitmentsLoans are greater than the Applicable Margins for the Initial Term Loans by more than 0.50%, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental then the Applicable Margins for the Initial Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, Loans shall only be increased to the extent of Incremental Revolving Credit Commitments or necessary so that the Applicable Margins for the Initial Term Loans are equal to the Applicable Margins for the Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitmentsminus 0.50%; provided, further, that, with respect to any Incremental Term Loan Commitment incurred Loans that do not bear interest at a rate determined by reference to the LIBOR Rate, for purposes of calculating the applicable increase (if any) in the Applicable Margins for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”)Initial Term Loans in the immediately preceding proviso, the condition set forth in Section 3.2(a) Applicable Margin for such Incremental Term Loans shall be deemed to be the interest rate (calculated in accordance with the immediately succeeding
(1) with respect to the Initial Term Loans, to the extent that the Reference Rate on the Incremental Facility Closing Date is less than 1.00%, the amount of such difference shall be deemed added to the Applicable Margin for the Initial Term Loans solely for the purpose of determining whether an increase in the Applicable Margin for the Initial Term Loans shall be required and (2) with respect to the Incremental Term Loans, to the extent that the Reference Rate on the Incremental Facility Closing Date is less than the interest rate floor, if any, applicable to the Incremental Term Loans, the amount of such difference shall be deemed added to the Applicable Margin for the Incremental Term Loans solely for the purpose of determining whether an increase in the Applicable Margin for the Initial Term Loans shall be required and (z) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been satisfied so long asgiven prompt written notice thereof and this Agreement is amended prior to or substantially with the incurrence of the Incremental Term Loans to include such Previously Absent Financial Maintenance Covenant for the benefit of each then outstanding Credit Facility.
(B) 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 Term Loans may be made, subject to the prior written consent of the Borrower, by any existing Lender (it being understood that no existing Lender will have an obligation to make a portion of any Incremental Term Loan except as such Lender may expressly agree pursuant to an Incremental Agreement) or by any other bank, financial institution, other institutional lender or other investor (any such other bank, financial institution or other investor being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans if such consent would be required under Section 13.6(b) for an assignment of Loans to such Lender or Additional Lender.
(d) Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrower, the Guarantors, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Agreement may, subject to Section 2.14(c), without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary, in the reasonable opinion of the date Administrative Agent and the Borrower, to effect the provisions of this Section 2.14. The effectiveness of any Incremental Agreement (each, an “Incremental Facility Closing Date”) and the initial borrowing occurrence of any Credit Event pursuant to such Acquisition-Related Incremental Commitment, the specified representations Agreement shall be true and correct subject to the satisfaction of such conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement; provided, however, that the proceeds of any Incremental Term Loans incurred as described in all material respects (or the proviso to Section 2.14(b) shall be used in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, accordance with the initial borrowing pursuant to such Acquisition-Related Incremental Commitmentterms thereof.
(ce) The terms and provisions of Loans made pursuant to an Approved Increase No Lender shall be identical obligated to provide any Incremental Term Loans unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans.
(f) This Section 2.14 shall supersede any provisions in Section 2.7 or 13.1 to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for contrary. For the avoidance of doubt, differences in upfront fees).
(d) With respect any provisions of this Section 2.14 may be amended with the consent of the Required Lenders; provided no such amendment shall require any Lender to provide any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to Commitment without such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments’s consent.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Incremental Facilities. The Borrower may from time to time add one or more tranches of term loans or increase an outstanding tranche of term loan (each an “Incremental Term Facility”), and/or increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as, an “Incremental Facility”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to aggregate principal amount of all Incremental Facilities shall not exceed the Maturity Date, by written notice to the Agent, elect to request an increase in the greater of (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or $200,000,000 and (y) existing Revolving Commitments 50% of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount Consolidated EBITDA as of the proposed increase, if any, to end of the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on period of four Fiscal Quarters most recently for which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made has delivered financial statements pursuant to this Section 2.18.6.01(a) or (b);
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.71.07, each of no Default shall exist on the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness effective date of such Incremental Revolving Credit Commitments Facility or the funding of the relevant would exist after giving effect to such Incremental Term Loan Commitments; provided, further, that, with respect Facility;
(c) subject to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”)Section 1.07, the condition set forth representations and warranties of each Loan Party contained in Section 3.2(a) shall be deemed to have been satisfied so long asArticle V or any other Loan Document, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitmentor which are contained in any document furnished at any time under or in connection herewith or therewith, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior toon and as of the effective date of such Incremental Facility, except to the extent that such representations and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant warranties specifically refer to an Approved Increase earlier date, in which case they shall be identical to the terms true and provisions applicable to the relevant Class correct as of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).earlier date;
(d) With respect no existing Lender shall be under any obligation to provide any commitment to any Incremental Revolving Credit Commitments, Facility and any such decision whether to provide a commitment to an Incremental Facility hall be in such Lender’s sole and absolute discretion;
(e) each Incremental Facility shall be in an aggregate principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(f) each Person providing a commitment to an Incremental Facility shall qualify as an Eligible Assignee;
(g) the Borrower shall deliver to the extent any Advances or Letters Administrative Agent:
(i) a certificate of Credit each Loan Party dated as of the relevant Class date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Facility, the conditions in clause (b) and (c) above are true and correct;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(iii) opinions of legal counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender (including each Person providing a commitment to an Incremental Facility), dated as of the effective date of such Incremental Facility Amendment; and
(iv) subject to Section 1.07, evidence that after giving effect to the incurrence of such Approved Incremental Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (iv) assuming that any then proposed Incremental Revolving Increase is fully drawn) the Loan Parties would be in compliance with the financial covenants set forth in Section 6.03 recomputed as of the end of the period of four Fiscal Quarters most recently for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b);
(h) in the case of an Incremental Term Facility, the interest rate, interest rate margins, fees, discount, prepayment premiums, if any, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that:
(i) the final maturity of such Incremental Term Facility shall not be earlier than the latest Maturity Date hereunder; and
(ii) the Weighted Average Life to Maturity of such Incremental Term Facility shall not be shorter than the then remaining Weighted Average Life to Maturity of any other then existing Incremental Term Facility; and
(iii) such Incremental Term Facility shall share ratably in any prepayments of any other then existing Incremental Term Facility (or otherwise provide for more favorable prepayment treatment for the then outstanding Incremental Term Facilities) and shall have ratable voting rights as the other then outstanding Incremental Term Facilities (or otherwise provide for more favorable voting rights for the then outstanding Incremental Term Facilities);
(i) in the case of any Incremental Revolving Increase:
(i) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders providing such Incremental Facility) applicable to the Revolving Loans;
(ii) if any Revolving Loans are outstanding on the date of such increase, (x) each Lender providing such Incremental Revolving Increase Effective Dateshall make Revolving Loans, each the proceeds of which shall be applied by the Administrative Agent to prepay Revolving Loans of the existing Lenders, in an amount necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Lenders and (y) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans of existing Lenders; and
(iii) the existing Lenders shall on the effective date of such Class having a Incremental Revolving Commitment of Increase be deemed to have made such Class prior assignments (which assignments shall not be subject to the Increase Effective Date (requirements set forth in Section 11.06(b)) of the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and outstanding participation interests in Letters of Credit on and Swing Line Loans to the Lenders providing such Incremental Revolving Increase Effective Date and the Administrative Agent may make such adjustments to the Register as shall be are necessary in order so that, after giving effect to all such assignments and purchasesadjustments, each Lender (including the Lenders providing such Advances and Incremental Revolving Increase) will hold participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect Swing Line Loans equal to such Incremental Revolving Credit Commitmentsits pro rata share thereof.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Trex Co Inc)
Incremental Facilities. (a) The At any time and from time to time, the Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Administrative Agent, elect to request an increase to the Revolving Facility Commitments (each such increase, an “Incremental Commitment”) in effect on the Closing Date in an aggregate principal amount, collectively, not to exceed U.S.$300.0 million. Any Borrowing under an Incremental Commitment shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than U.S.$10.0 million (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan CommitmentsLoans”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify the date (ian “Increased Amount Date”) on which the amount of Borrower proposes that the proposed increaseIncremental Commitments shall be made available, if any, to the existing Revolving Commitments or Term Loans, as applicable, which shall be a date not less than five (ii5) Business Days after the date on which such increase notice is delivered to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent). The Borrower shall become effective (notify the “Increase Effective Date”), and (iii) Administrative Agent in writing of the identity of each Lender or other Eligible Transferee financial institution (which in any event shall not be the Borrower, an Affiliate of the Borrower or a Defaulting Lender) reasonably acceptable to the Administrative Agent and the Issuing Banks (each, an “Incremental Lender”) to whom the Borrower proposes any portion of such Revolving Incremental Commitments or Incremental Term Loan Commitments, as applicable, be have been (in accordance with the prior sentence) allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such an Incremental Revolving Credit Commitment or Commitment. Such Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Increased Amount Date; provided that, subject that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or and Incremental Loans; (ii) the funding of representations and warranties contained in Article III and the relevant Incremental Term other Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects if (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materialitymateriality in the text thereof) immediately prior toas of such earlier date; (iii) the Incremental Loans shall rank pari passu in right of payment and of security with the Loans; (iv) such Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and immediately after giving effect toeach shall be recorded in the register, each of which shall be reasonably satisfactory to the initial borrowing Administrative Agent and subject to the requirements set forth in Section 2.17(e); (v) the Borrower shall make any payments required pursuant to such Acquisition-Related Section 2.16 in connection with the provisions of the Incremental Commitment.
Commitments; (cvi) The the Borrower and its Affiliates shall not be permitted to commit to or participate in any Incremental Commitments or any Incremental Loans and (vii) the terms and provisions conditions of any Incremental Commitment and Incremental Loans made pursuant (other than those terms relating directly to an Approved Increase upfront fees or arrangement fees) shall be identical to those of the terms existing Revolving Facility Commitments and provisions applicable Revolving Facility Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to the relevant Class extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments and the Incremental Loans and/or evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments without the consent of any Lender. Notwithstanding the foregoing, the Borrower hereby agrees that the availability of Incremental Commitments shall be subject to the prior satisfaction of the following conditions: (x) each Loan Party shall have obtained all material consents necessary in connection with such Approved Increase immediately prior to such Increase Effective Date Incremental Commitments; and (other thany) the Administrative Agent shall have received, on behalf of itself, the Collateral Agent, the Lenders and each Issuing Bank on the applicable Increased Amount Date, favorable written opinions of counsel for the avoidance of doubtLoan Parties, differences (A) dated the applicable Increased Amount Date, (B) addressed to each Issuing Bank on the applicable Increased Amount Date, the Administrative Agent, the Collateral Agent and the Lenders, and (C) in upfront fees)form and substance reasonably satisfactory to the Administrative Agent and covering such matters relating to the Incremental Commitments and the Incremental Loans as the Administrative Agent shall reasonably request, and each Loan Party hereby instructs its counsel to deliver such opinions.
(db) With respect to On any Increased Amount Date on which Incremental Revolving Credit CommitmentsCommitments are effected, subject to the extent any Advances or Letters of Credit satisfaction of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Dateforegoing terms and conditions, (i) each of the existing Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender each of such Class which is acquiring an the Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase each of the Incremental Lenders shall purchase from each Revolving Pre-Increase Lenderof the existing Lenders, at the principal amount thereof, such interests in the Advances outstanding Revolving Facility Loans and participation interests participations in Revolving Letters of Credit outstanding on such Increase Effective Increased Amount Date as shall be necessary in order thatthat will result in, after giving effect to all such assignments and purchases, such Advances Revolving Facility Loans and participation interests participations in Revolving Letters of Credit will be being held by Revolving Pre-Increase existing Lenders and Revolving Post-Increase Incremental Lenders ratably in accordance with their Pro Rata Share of such Class Revolving Facility Commitments after giving effect to the addition of such Incremental Commitments to the Revolving Facility Commitments, (ii) each Incremental Commitment shall be deemed for all purposes a Revolving Facility Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Facility Loan and have the same terms as any existing Revolving Facility Loan and (iii) each Incremental Lender shall become a Lender with respect to the Revolving Facility Commitments and all matters relating thereto, in each case, without the consent of any other Lender.
(c) A portion of the Incremental Commitment may be made available for the issuance of Revolving Letters of Credit Commitmentsin an amount not exceeding the proportional amount of the Revolving L/C Sublimit to the aggregate amount of the Revolving Facility Commitments as of such date.
(d) The Incremental Loans shall be used solely for working capital, capital expenditures and other lawful purposes (including the payment of transaction fees and expenses and for the issuance of Revolving Letters of Credit).
(e) All Incremental Loans will be made in accordance with the procedures set forth in Section 2.03.
(f) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of an Increased Amount Date and, in respect thereof, the Incremental Loan Commitments and loans made pursuant thereto, established the Incremental Lenders.
(g) As a condition precedent to the Borrower’s incurrence of additional Indebtedness pursuant to this Section shall constitute Loans and Commitments under2.20, (i) the Borrower shall, and shall be entitled cause each Loan Party to, enter into, and deliver to all the benefits afforded by, this Agreement Administrative Agent and the other Loan DocumentsCollateral Agent, and shall, without limiting the foregoing, benefit equally and ratably from reaffirmations of the guarantees and the security interests created and Liens granted by the Loan DocumentsParties under the Security Documents in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent and (ii) with respect to any Mortgaged Property, the Borrower shall, and shall cause each Loan Party to, enter into, and deliver to the Administrative Agent and the Collateral Agent, upon the reasonable request of the Administrative Agent and/or the Collateral Agent (x) mortgage modifications or new Mortgages with respect to any Mortgaged Property in each case in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent and the Collateral Agent and (y) all other items reasonably requested by the Collateral Agent that are reasonably necessary to maintain the continuing perfection or priority of the Lien of the Mortgages as security for such Obligations.
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
Incremental Facilities. The Borrower may from time to time add one or more tranches of term loans or increase an outstanding tranche of term loan (each an “Incremental Term Facility”), and/or increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase are collectively referred to as, an “Incremental Facility”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(a) The Borrower may, on one or more occasions the aggregate principal amount of all Incremental Facilities requested after the Restatement Effective Closing Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does shall not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.Cap;
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.71.07, each of no Default shall exist on the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness effective date of such Incremental Revolving Credit Commitments Facility or the funding of the relevant would exist after giving effect to such Incremental Term Loan Commitments; provided, further, that, with respect Facility;
(c) subject to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”)Section 1.07, the condition set forth representations and warranties of each Loan Party contained in Section 3.2(a) shall be deemed to have been satisfied so long asArticle V or any other Loan Document, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitmentor which are contained in any document furnished at any time under or in connection herewith or therewith, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior toon and as of the effective date of such Incremental Facility, except to the extent that such representations and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant warranties specifically refer to an Approved Increase earlier date, in which case they shall be identical to the terms true and provisions applicable to the relevant Class correct as of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).earlier date;
(d) With respect no existing Lender shall be under any obligation to provide any commitment to any Incremental Facility and any such decision whether to provide a commitment to an Incremental Facility shall be in such ▇▇▇▇▇▇’s sole and absolute discretion;
(e) each Incremental Facility shall be in an aggregate principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(f) each Person providing a commitment to an Incremental Facility shall qualify as an Eligible Assignee;
(g) the Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to such Incremental Facility, the conditions in clause (b) and (c) above are true and correct;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations 14618770v5 after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(iii) opinions of legal counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender (including each Person providing a commitment to an Incremental Facility), dated as of the effective date of such Incremental Facility Amendment; and
(iv) subject to Section 1.07, evidence that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (iv) assuming that any then proposed Incremental Revolving Credit CommitmentsIncrease is fully drawn but excluding the cash proceeds of such Incremental Facility for purposes of calculating clause (ii) of the definition of Consolidated Debt in the calculation of the Consolidated Debt to Consolidated EBITDA Ratio) the Loan Parties would be in compliance with the financial covenants set forth in Section 6.03 recomputed as of the end of the period of four Fiscal Quarters most recently ended for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b);
(h) any Incremental Term Facility that constitutes a new term loan shall (i) have a maturity date that is no earlier than the Latest Maturity Date, (ii) have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of any previously incurred Incremental Term Facility, (ii) rank pari passu or junior in right of payment priority with the existing Loans, (iv) share ratably or junior in rights in the Collateral and the Guaranty and in a manner consistent with the terms of the existing Loans; (v) share no more than ratably in any mandatory prepayments of any previously incurred Incremental Term Loan pursuant to Section 2.05 (or otherwise provide for more favorable (from the perspective of the Borrower) prepayment treatment than any previously incurred Incremental Term Facility) and (vi) otherwise be on terms not materially more onerous, taken as a whole, to the Borrower than the then-existing Loans (as determined in good faith by the Borrower in consultation with the Administrative Agent) or otherwise be acceptable to the Administrative Agent (which may include such Incremental Term Facility being structured to not receive the benefits of any financial covenants) (it being understood that additional financial maintenance covenants or other materially onerous terms (including additional mandatory prepayments, such as in respect of “excess cash flow”) may apply to such Incremental Term Facility, either (1) only to the extent such other terms are applicable after the Latest Maturity Date of any previously incurred Incremental Term Facility or (2) if the Loan Documents are amended to include such other terms for the benefit of the other Lenders on and after the effective date of such Incremental Term Facility; provided that, notwithstanding the foregoing, to the extent any Advances or Letters of Credit of required by the relevant Class subject Lenders for such Incremental Term Facility in connection with the establishment thereof, customary call protection, customary “most favored nation” pricing protection and/or customary borrower buy-back provisions, in each case, which may be applicable solely with respect to such Approved Incremental Term Facility may be included; provided, further, that, except with respect to bridge financing described below if any mandatory prepayment is required by the Lenders providing such Incremental Term Facility in connection with the establishment of such Incremental Term Facility, and such mandatory prepayment is not required by this Agreement at the time of establishment of such Incremental Term Facility, such mandatory prepayment shall be added to this Agreement ratably for the benefit of such Incremental Term Facility and any other previously incurred Incremental Term Facility); provided, further, that clauses (i), (ii) and (v) above shall not apply to customary bridge debt facilities (including 364-day bridge facilities) incurred by the Borrower, so long as (x)(1) at the initial maturity of any such bridge debt facility, such bridge debt facility shall automatically convert to (or would be required to be exchanged for) indebtedness 14618770v5 that complies with clauses (i), (ii) and (v) above or (2) such bridge debt facility is incurred with the intent to convert such bridge debt facility to permanent financing that complies with clauses (i), (ii) and (v) above, and (y) the only prepayments required to be made on such bridge debt facility shall be such prepayments as are customary (including with respect to priority thereof) for similar bridge financings in light of then-prevailing market conditions (as determined by the Administrative Agent and the Borrower);
(i) in the case of any Incremental Revolving Increase: (i) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders under such Incremental Facility) applicable to the Aggregate Revolving Commitments; (ii) if any Revolving Loans are outstanding on the date of such increase, (x) each Lender providing such Incremental Revolving Increase Effective Dateshall make Revolving Loans, each the proceeds of which shall be applied by the Administrative Agent to prepay Revolving Loans of the existing Revolving Lenders, in an amount necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Revolving Lenders of such Class having with a Revolving Commitment and (y) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans of existing Revolving Lenders; and (iii) the existing Revolving Lenders with a Revolving Commitment shall on the effective date of such Class prior Incremental Revolving Increase be deemed to have made such assignments (which assignments shall not be subject to the Increase Effective Date (requirements set forth in Section 11.06(b)) of the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and outstanding participation interests in Letters of Credit on and Swing Line Loans to the Lenders providing such Incremental Revolving Increase Effective Date and the Administrative Agent may make such adjustments to the Register as shall be are necessary in order so that, after giving effect to all such assignments and purchasesadjustments, each Revolving Lender with a Revolving Commitment (including the Lenders providing such Advances and Incremental Revolving Increase) will hold participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect Swing Line Loans equal to such Incremental Revolving Credit Commitmentsits pro rata share thereof.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Trex Co Inc)
Incremental Facilities. This Agreement and the other Loan Documents may be amended at any time after the Closing Date to add one or more tranches of term loans (each an “Incremental Term Facility”) and/or increase the Aggregate Commitments (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase is an “Incremental Facility”), at the option of the Borrower by an agreement in writing entered into by the Borrower, the Guarantors, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each, an “Incremental Facility Amendment”); provided that:
(a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing Term Loans aggregate principal amount of any Class (the commitments thereto, the “all Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does Facilities shall not exceed the Maximum $250 million;
(i) such Incremental Facilities Amount. Such Approved Increase Facility shall be in a minimum principal amount of at least $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount 15 million and integral multiples of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, $1 million in excess thereof and (ii) there shall be no more than five (5) Incremental Facilitates during the term of this Agreement;
(c) no Default shall exist on the effective date on which of such increase shall become effective Incremental Facility or would exist after giving effect to such Incremental Facility;
(the “Increase Effective Date”), and (iiid) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated representations and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, warranties contained in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, without the consent of any other Lender, effect such amendments to this Agreement Article V and the other Loan Documents as may be necessary or appropriate, in the opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be are true and correct in all material respects (or as of the effective date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects if as of such earlier date (unless such representations and warranties are qualified by as to “materiality) immediately prior to” or “Material Adverse Effect”, in which case, they are true and correct in all respects), and immediately except that for purposes of this Section 2.14, the representations and warranties contained in subsection (a) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsection (a) of Section 6.01;
(e) no existing Lender shall be under any obligation to participate in such Incremental Facility and any such decision whether to participate in such Incremental Facility shall be in such Lender’s sole and absolute discretion;
(f) each Person participating in such Incremental Facility shall qualify as an Eligible Assignee;
(g) the Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) certifying that the conditions set forth in Sections 2.14(c) and (d) are true and correct as of such date;
(ii) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing a commitment with respect to an Incremental Facility), dated as of the effective date of such Incremental Facility;
(h) the Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that after giving effect toto the incurrence of such Incremental Facility the Loan Parties would be in compliance with the financial covenants set forth in Section 7.10 on a Pro Forma Basis;
(i) in the case of an Incremental Term Facility:
(i) the final maturity date for such Incremental Term Facility shall not be earlier than the later of the Maturity Date or the final maturity date of any other Incremental Facility;
(ii) the weighted average life for such Incremental Term Facility shall not be shorter than the then remaining weighted average life of any other Incremental Term Facility; and
(iii) subject to the foregoing clauses, the initial borrowing pursuant to other terms of such Acquisition-Related Incremental CommitmentTerm Facility (including interest rate, interest rate margins, interest rate floors, fees, original issue discount, call protection or prepayment penalty, amortization and final maturity date) shall be as agreed by the Borrower and the Persons providing such Incremental Term Facility and approved by the Administrative Agent.
(cj) The terms and provisions in the case of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit CommitmentsIncrease, to the extent if any Advances or Letters of Credit of the relevant Class subject to such Approved Increase Committed Loans are outstanding on the date of such increase, (x) each Lender providing such Incremental Revolving Increase Effective Dateshall make Committed Loans, each the proceeds of which shall be applied by the Administrative Agent to prepay Committed Loans of the existing Lenders, in an amount necessary such that after giving effect thereto the outstanding Committed Loans are held ratably among all of the Lenders with a Commitment and (y) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such Class having a Revolving Commitment prepayment of such Class prior Committed Loans of existing Lenders. The commitments to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), Facility and such Revolving Post-Increase Lenders credit extensions thereunder shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan constitute Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments Credit Extensions under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents. The Lenders hereby authorize the Administrative Agent to enter into, and shallthe Lenders agree that this Agreement and the other Loan Documents shall be amended by, without limiting each Incremental Facility Amendment to the foregoing, benefit equally extent the Administrative Agent deems necessary in order to establish the applicable Incremental Facility and ratably from the guarantees and security interests created to effect such other changes agreed by the Loan Documents.Borrower and the Persons providing such Incremental Facility and approved by the Administrative Agent; provided, however, that the Incremental Facility Amendment shall not effect any change described in Section 10.01(a) through (g) without the consent of each Person required to consent to such change under
Appears in 1 contract
Sources: Credit Agreement (McGrath Rentcorp)
Incremental Facilities. The Borrower may from time to time increase the Aggregate Revolving Commitments (each such increase, an “Incremental Facility”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or all Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto Facilities shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.exceed $100,000,000;
(b) The Incremental Loan Commitments with respect to an Approved Increase no Default shall become exist on the effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness date of such Incremental Revolving Credit Commitments Facility or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant would exist after giving effect to such Acquisition-Related Incremental CommitmentFacility;
(c) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, the specified representations or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior toon and as of the effective date of such Incremental Facility, except to the extent that such representations and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant warranties specifically refer to an Approved Increase earlier date, in which case they shall be identical to the terms true and provisions applicable to the relevant Class correct as of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).earlier date;
(d) With respect no existing Lender shall be under any obligation to provide any commitment to any Incremental Revolving Credit Commitments, Facility and any such decision whether to provide a commitment to an Incremental Facility hall be in such Lender’s sole and absolute discretion;
(e) each Incremental Facility shall be in an aggregate principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(f) each Person providing a commitment to an Incremental Facility shall qualify as an Eligible Assignee;
(g) the Borrower shall deliver to the extent any Advances or Letters Administrative Agent:
(i) a certificate of Credit each Loan Party dated as of the relevant Class subject date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to such Approved Increase Incremental Facility, the conditions in clause (b) and (c) above are true and correct;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(iii) opinions of legal counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender (including each Person providing a commitment to an Incremental Facility), dated as of the effective date of such Incremental Facility; and
(iv) a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (iv) assuming that such any then proposed Incremental Facility is fully drawn) the Loan Parties would be in compliance with the financial covenants set forth in Section 6.03 recomputed as of the end of the period of four Fiscal Quarters most recently for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b);
(h) such Incremental Facility shall have the same terms (including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders under such Incremental Facility) applicable to the Aggregate Revolving Commitments;
(i) if any Revolving Loans are outstanding on the Increase Effective Datedate of such increase, (x) each Lender providing such Incremental Facility shall make Revolving Loans, the proceeds of which shall be applied by the Administrative Agent to prepay Revolving Loans of the existing Lenders, in an amount necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Lenders of such Class having with a Revolving Commitment and (y) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans of existing Lenders; and
(j) the existing Lenders with a Revolving Commitment shall on the effective date of such Class prior Incremental Facility be deemed to have made such assignments (which assignments shall not be subject to the Increase Effective Date (requirements set forth in Section 11.06(b)) of the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and outstanding participation interests in Letters of Credit on and Swing Line Loans to the Lenders providing such Increase Effective Date Incremental Facility and the Administrative Agent may make such adjustments to the Register as shall be are necessary in order so that, after giving effect to all such assignments and purchasesadjustments, each Lender with a Revolving Commitment (including the Lenders providing such Advances and Incremental Facility) will hold participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect Swing Line Loans equal to such Incremental Revolving Credit Commitmentsits pro rata share thereof.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Trex Co Inc)
Incremental Facilities. (a) The Borrower may, on Borrowers may from time to time add one or more occasions after tranches of term loans (each an “Incremental Term Facility”) and/or increase the Restatement Effective Date Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing together with each Incremental Term Loans of any Class (the commitments theretoFacility collectively, the “Incremental Term Loan CommitmentsFacilities”) and/or to this Agreement at the option of the Borrowers by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (yincluding any existing Lender) existing Revolving Commitments that agrees to provide a portion of any Class such Incremental Facility (each an “Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan CommitmentsFacility Amendment”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify ; provided that:
(i) the aggregate principal amount of all Incremental Facilities incurred after the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, Second Amendment Effective Date shall not exceed $75,000,000;
(ii) no Default shall exist on the effective date on which of such increase shall become effective (the “Increase Effective Date”), and Incremental Facility or would exist after giving effect to such Incremental Facility;
(iii) the identity representations and warranties of each Lender Loan Party contained in Article V or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemedDocument, unless or which are contained in any report, certificate or similar document executed and delivered by the context otherwise requiresBorrowers or any other Loan Party and furnished at any time under or in connection herewith or therewith, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made or furnished pursuant to Article II, Article V or Sections 7.01, 7.02 or 7.03 of this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided thatAgreement, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or on and as of the effective date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects if qualified as of such earlier date;
(iv) no existing Lender shall be under any obligation to provide any Incremental Facility Commitment and any such decision whether to provide an Incremental Facility Commitment shall be in such Lender’s sole and absolute discretion;
(v) each Incremental Facility shall be in an aggregate principal amount of at least $10,000,000 and integral multiples of $500,000 in excess thereof;
(vi) each Person providing an Incremental Facility Commitment shall qualify as an Eligible Assignee;
(vii) the Borrowers shall deliver to the Administrative Agent:
(A) a certificate of each Loan Party dated as of the effective date of such Incremental Facility signed by materialitya Responsible Officer of such Loan Party (1) immediately prior tocertifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (2) in the case of the Borrowers, certifying that, before and immediately after giving effect toto such Incremental Facility, the initial borrowing conditions set forth in clauses (ii) and (iii) of this Section 2.01(b) above are satisfied;
(B) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility; and
(C) a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (C) assuming that any then proposed Incremental Revolving Increase or Incremental Term Facility is fully drawn) the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 recomputed as of the end of the Applicable Period;
(viii) in the case of an Incremental Term Facility:
(A) the interest rate, interest rate margins, fees, discount, prepayment premiums, amortization and final maturity date for such Incremental Term Facility shall be as agreed by the Loan Parties and the Lenders providing such Incremental Term Facility; provided that (1) the final maturity of such Incremental Term Facility shall not be earlier than the latest maturity date of any outstanding term loan under this Agreement, if any, and (2) the Weighted Average Life to Maturity of such Incremental Term Facility shall not be shorter than the Weighted Average Life to Maturity of any outstanding term loan under this Agreement, if any; and
(B) such Incremental Term Facility shall share ratably in any mandatory prepayments of the other term loans, if any, under this Agreement pursuant to such Acquisition-Related Incremental Commitment.
Section 2.05(b) (c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, or otherwise provide for more favorable prepayment treatment for the avoidance of doubtthen outstanding term loans under this Agreement) and shall have ratable voting rights as the other term loans, differences in upfront feesif any, under this Agreement (or otherwise provide for more favorable voting rights for the then outstanding term loans under this Agreement).
(dix) With respect to in the case of any Incremental Revolving Credit Commitments, Increase:
(A) such Incremental Revolving Increase shall have the same terms (including interest rate and interest rate margins but excluding upfront fees payable solely to the extent Lenders under such Incremental Revolving Increase) applicable to the Revolving Commitments and Revolving Loans;
(B) if any Advances or Letters of Credit of the relevant Class subject to such Approved Increase Revolving Loans are outstanding on the date of such increase, (1) each Lender providing such Incremental Revolving Increase Effective Dateshall make Revolving Loans, each the proceeds of which shall be applied by the Administrative Agent to prepay Revolving Loans of the existing Lenders, in an amount necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Lenders of such Class having with a Revolving Commitment and (2) the Borrowers shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans of existing Lenders; and
(C) the existing Lenders with a Revolving Commitment shall on the effective date of such Class prior Incremental Revolving Increase be deemed to have made such assignments (which assignments shall not be subject to the Increase Effective Date (requirements set forth in Section 11.06(b)) of the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and outstanding participation interests in Letters of Credit on and Swing Line Loans to the Lenders providing such Incremental Revolving Increase Effective Date and the Administrative Agent may make such adjustments to the Register as shall be are necessary in order so that, after giving effect to all such assignments and purchasesadjustments, each Lender with a Revolving Commitment (including the Lenders providing such Advances and Incremental Revolving Increase) will hold participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect Swing Line Loans equal to such Incremental Revolving Credit Commitmentsits pro rata share thereof.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Forward Air Corp)
Incremental Facilities. (a) The Borrower, on behalf of the Borrower and Guarantors, may, on any Business Day after the Term Loan Commitment Termination Date, request (x) one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request new term loan facilities or (y) an increase in of the aggregate amount of the Revolving Credit Commitments or Term Loans (each of clauses (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or and (y) existing Revolving Commitments of any Class (an “Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan CommitmentsFacility”); provided, (each increase that satisfies the terms and conditions of this Section 2.18however, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify that: (i) the aggregate principal amount of Incremental Facilities incurred after the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, Effective Date shall not exceed $700,000,000; (ii) no approval or consent of any Bank shall be required except the date on which Banks providing such increase shall become effective Incremental Facility and the consents contemplated by clause (the “Increase Effective Date”)vi) below, and (iii) the identity any Incremental Facility shall be in an aggregate amount for all Banks of each Lender not less than $50,000,000 (or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, lesser aggregate amount for all Banks as applicable, may be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Administrative Agent; provided that any Lender ), (iv) no Default or other Eligible Transferee approached to provide all Event of Default shall have occurred and be continuing at the time of the request or a portion the effective date of the Incremental Revolving Credit Commitments Facility or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent will result therefrom (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, without the consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateor, in the opinion case of the Agent, an Incremental Facility that will be used to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing finance a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”Transaction, no Default or Event of Default shall have occurred and be continuing on the LCT Test Date and no Event of Default specified in clauses 6.1(g) and 6.1(h) shall have occurred and be continuing on the date such Limited Condition Transaction is consummated), the condition set forth (v) all representations and warranties contained in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations Article 4 hereof shall be true and correct in all material respects (or in all respects if where not already qualified by materiality, otherwise in all respects) immediately prior toat the time of such request and on the effective date of such Incremental Facility (other than representations and warranties that relate to a specific date, which shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such date) (limited in the case of any Limited Condition Transaction to the Specified Representations), and immediately (vi) the Administrative Agent and, solely in the case of an increase of the aggregate amount of the Revolving Credit Commitments, each Letter of Credit Issuer and the Swing Lender shall have provided their written consent (which consents shall not be unreasonably withheld, conditioned or delayed).
(b) In order to request an Incremental Facility, the Borrower shall deliver written notice to the Administrative Agent at least five (5) Business Days (or such shorter period of time agreed by the Administrative Agent) prior to the desired effective date of such Incremental Facility identifying one or more existing or additional Banks and the amount of the Incremental Facility. Upon the effectiveness of an Incremental Facility in the form of a Revolving Credit Commitment increase, the new Banks (or, if applicable, existing Banks) (i) shall advance Revolving Loans in an amount sufficient such that after giving effect toto its Revolving Loans each Bank shall have outstanding its respective Percentage of all Revolving Loans and (ii) shall acquire its Revolver Percentage of all participations in Letter of Credit Outstandings and Swing Loans. It shall be a condition to such effectiveness that (i) if any SOFR Loans are outstanding on the date of such effectiveness, Section 2.13 shall apply and (ii) in the case of an Incremental Facility in the form of a Revolving Credit Commitment increase, the initial borrowing Borrower shall not have terminated any portion of the Revolving Credit Commitments pursuant to Section 2.8 hereof. The Borrower and each Guarantor agree to deliver to the Administrative Agent such Acquisition-Related corporate due diligence documents as the Administrative Agent shall reasonably request in connection with any Incremental CommitmentFacility. Promptly upon the effectiveness of any Incremental Facility, the Borrower shall execute and deliver new Notes to each requesting Bank. The effective date of any Incremental Facility shall be agreed upon by the Borrower and the Administrative Agent.
(c) The terms and provisions Commitments in respect of Loans made any Incremental Facility shall become Commitments under this Agreement pursuant to an Approved Increase amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrower, each Guarantor, each Bank agreeing to provide such Incremental Facility, if any, each new Bank, if any, and the Administrative Agent. The Incremental Amendment shall not, except as specified in the preceding sentence, require the consent of any Bank, and may effect such amendments to this Agreement and the other Credit Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The Banks hereby authorize the Administrative Agent to execute such other documents, instruments and agreements, including security agreements, as may be necessary in the reasonable opinion of the Administrative Agent to give effect to the Incremental Amendment. The effectiveness of any Incremental Amendment shall be identical subject to the terms and provisions applicable to satisfaction on the relevant Class date thereof of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for conditions as the avoidance of doubt, differences in upfront fees)parties thereto shall agree.
(d) With respect The Borrower agrees to pay any reasonable out‑of‑pocket expenses of the Administrative Agent relating to any Incremental Revolving Credit Commitments, Facility or Incremental Amendment. Notwithstanding anything herein to the extent contrary, no Bank shall have any Advances or Letters obligation to increase any of Credit of the relevant Class subject its Commitments and no Commitments shall be increased without its consent thereto, and each Bank may at its option, unconditionally and without cause, decline to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring provide an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit CommitmentsFacility.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Incremental Facilities. (ai) The Borrower mayFor the avoidance of doubt and notwithstanding any provision to the contrary set forth in this Agreement or any other Loan Document, on this Agreement may be amended (or amended and restated) at any time and from time to time to increase the Revolving Committed Amount or to establish one or more occasions after the Restatement Effective Date and prior additional separate tranches of term loans (each such increase to the Maturity Date, by written notice Revolving Committed Amount and/or establishment of a new tranche term loans being referred to the Agent, elect herein as an “Incremental Facility,” and all of such increases and establishments being referred to request an increase in the (x) existing Term Loans of any Class (the commitments thereto, collectively as the “Incremental Term Loan CommitmentsFacilities”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with to be made to the Incremental Term Loan CommitmentsBorrower by an agreement in writing entered into by the Borrower, the “Incremental Loan Commitments”), Administrative Agent and each Person (each increase including any Lender) that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount of the proposed increase, if any, agree to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which provide any such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent such separate tranches of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent term loans (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, but without the 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 such amendments to as if it had originally been a Lender under this Agreement and with the other Loan Documents as may be necessary or appropriateRevolving Commitment and/or term loan set forth in such agreement; provided, in however, that: (A) the opinion aggregate principal amount of additional Revolving Commitments and/or separate term loans effected after the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made Closing Date pursuant to this Section 2.18.
9.1(c) shall not exceed $20,000,000; (bB) The no Default or Event of Default shall exist at the time that the amendment giving effect to any such additional Revolving Commitments and/or the making of a separate term loan, as applicable, becomes effective; (C) to the extent not consistent with the terms applicable to the existing Term Loan Facility, and subject to the other requirements of this Section 9.1(c), all terms and conditions in respect of any Incremental Loan Commitments with respect Facility structured as a separate term loan tranche, will be reasonably satisfactory to an Approved Increase the Administrative Agent, (D) no Lender shall become effective as be obligated to participate in any such increase by increasing its own commitment hereunder unless such Lender elects to do so in its sole discretion at the time of such Increase Effective Date; provided thatincrease, subject to Section 1.7, each of the conditions set forth in Section 3.2 (E) any Incremental Facility structured as a separate term loan tranche shall be satisfied not (or waived1) have a maturity date that occurs prior to the effectiveness Maturity Date of the Term Loan or the final maturity date of any other then existing Incremental Facility structured as a separate term loan tranche or (2) have a weighted average life to maturity shorter than the weighted average life to maturity of the Term Loan or any other then existing Incremental Facility structured as a separate term loan tranche, respectively, (F) the Applicable Yield of any Incremental Facility structured as a separate term loan tranche may not exceed the Applicable Yield of the Term Loan by more than 0.25% (it being understood that the Applicable Rate for the Term Loan may be increased and/or additional fees may be paid to the Lenders holding the Tranche B Term Loan to the extent necessary to satisfy such requirement) and (G) the Applicable Yield of any Incremental Facility consisting of additional Revolving Commitments may not exceed the Applicable Yield of the Revolving Facility (it being understood that the Applicable Rate for the Revolving Facility may be increased and/or additional fees may be paid to the existing Revolving Lenders to the extent necessary to satisfy such requirement). Subject to the foregoing requirements, the interest margin applicable to any new Revolving Commitments or Incremental Facility structured as a separate term loan tranche, and the final maturity of any Incremental Facility structured as a separate term loan tranche, shall be determined at the time such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; providedFacility is made available, further, that, with respect and all other terms applicable to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) additional Revolving Commitments shall be deemed to have been satisfied so long as, the same as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions those applicable to the relevant Class of initial Revolving Commitments. The Loans and/or and Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section 9.1(c) shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, Credit Documents and shall, without limiting limitation of the foregoing, benefit equally and ratably from the guarantees Guaranty and security interests created by the Loan Security Documents, and the Borrower shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the requirements of this sentence are satisfied after the establishment of any such Incremental Facility.
(ii) Any such amendment (or amendment and restatement) effected pursuant to Section 9.1(c) shall amend the provisions of this Agreement and the other Credit Documents to set forth the terms of each Incremental Facility established thereby (including the amount and the final maturity thereof, any provisions relating to the amortization or mandatory prepayment thereof, the interest to accrue and be payable thereon and any fees to be payable in respect thereof (in each case subject to any applicable restrictions set forth in subsection (i) of this Section 9.1(c)) and to effect such other changes (including changes to the provisions of Section 9.1(a), Section 2.7 and the definition of “Required Lenders”) as the Borrower and the Administrative Agent shall deem necessary or advisable in connection with the establishment of any such Incremental Facility; provided, however, that no such agreement shall: (A) effect any change described in any of clauses of Section 9.1(a) without the consent of each Person required to consent to such change under such clause (it being agreed, however, that any increase in the aggregate Revolving Committed Amount or establishment of any Incremental Facility consisting of a separate tranche of term loans will not, of itself, be deemed to effect any of the changes described in Section 9.1(a), and that modifications to Section 2.7, Section 2.11 or the definition of “Required Lenders” or other provisions relating to voting provisions to provide the Persons providing the applicable Incremental Facility with the benefit of such provisions will not, by themselves, be deemed to effect any of the changes described in Section 9.1(a), or (B) amend Article V, VI or VII in any manner that by its terms benefits one or more tranches, but not all tranches, of Loans or Commitments without the prior written consent of Lenders holding a majority in interest of the Revolving Commitments then existing, if the Lenders holding Revolving Commitments are not so benefited, and of Lenders holding a majority in interest of each separate tranche of term loans then existing and not so benefited, (it being agreed that no provision requiring the Borrower to prepay term loans of one or more Incremental Facilities with the proceeds of Asset Dispositions, Recovery Events, Debt Issuances or with the proceeds of Excess Cash Flow will be deemed to violate this clause).
Appears in 1 contract
Sources: Credit Agreement (Bravo Brio Restaurant Group, Inc.)
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, may by written notice to the Agent, Administrative Agent elect to request prior to the Revolving Commitment Termination Date, an increase in to the existing Revolving Commitments (x) existing Term Loans of any Class (the commitments theretosuch increase, the “Incremental Term New Revolving Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an amount not in excess of $50,000,000 in the aggregate amountand not less than $10,000,000 individually in the case of the first such New Revolving Loan Commitment and not less than $5,000,000 individually in the case of each subsequent New Revolving Loan Commitment (or, for all in each case, such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase lesser amount which shall be in a minimum principal amount of $5,000,000 unless otherwise agreed approved by the Administrative Agent). Each such notice shall specify (i) the amount of date (each, an “Increased Amount Date”) on which the proposed increaseBorrower proposes that the New Revolving Loan Commitments shall be effective, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) which shall be a date not less than seven Business Days after the date on which such increase shall become effective notice is delivered to the Administrative Agent (or such shorter period as the “Increase Effective Date”), Administrative Agent may agree) and (iiiii) the identity of each Lender or other Eligible Transferee Person that is an eligible assignee under Section 11.04(b) (which, if not a Lender, an Approved Fund or an Affiliate of a Lender), shall be reasonably satisfactory to the Administrative Agent and the Issuing Banks (in each case, not to be unreasonably withheld or delayed) (each, a “New Revolving Loan Lender”) to whom the Borrower proposes any portion of such New Revolving Loan Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee Person approached to provide all or a portion of the Incremental any New Revolving Credit Loan Commitments may elect or Incremental Term decline to participate in its sole discretion. Such New Revolving Loan Commitments shall become effective, as of such Increased Amount Date; provided that (1) both before and after giving effect to such New Revolving Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied 4.02 (or waived) prior to with the effectiveness exception of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”Section 4.02(a), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long assatisfied, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other thanincluding, for the avoidance of doubt, differences the making of the representations and warranties contained in upfront fees).
Section 3.04(b) hereof (d) With respect provided that, in the case of any New Revolving Loan Commitments the proceeds of which are to any Incremental be used primarily to consummate a Limited Conditions Acquisition substantially concurrently with the effectiveness of such New Revolving Credit Loan Commitments, to the extent agreed to by the Borrower and the Lenders providing such New Revolving Loan Commitments, (x) the only representations and warranties the accuracy of which shall be a condition to the effectiveness of such New Revolving Loan Commitments shall be the Specified Representations and the Specified Acquisition Agreement Representations, and (y) the condition set forth in Section 4.02(c) shall be tested on the date the acquisition agreement with respect to such Limited Conditions Acquisition is signed (provided that, on the date such New Revolving Loan Commitments are effective, no Event of Default under Section 9.01(a), (b), (g), (h) or (i) shall exist or result therefrom)); (2) any Advances New Revolving Loan Commitments and New Revolving Loans made pursuant hereto shall be on the same terms as the existing Revolving Commitments and Loans made pursuant thereto (including, for the avoidance of doubt, with respect to maturity date and pricing), as set forth in and pursuant to the Loan Documents, with such additional amendments thereto as may be necessary or Letters of Credit appropriate in the judgment of the relevant Class Administrative Agent to effect such New Revolving Loan Commitments, and (3) as a condition to the effectiveness of such New Revolving Loan Commitments, the Borrower shall deliver or cause to be delivered any customary legal opinions or other certificates reasonably requested by the Administrative Agent in connection with any such transaction, and (4) immediately prior to and after giving effect to the incurrence of any New Revolving Loan Commitments pursuant to this Section 2.23, the Net Debt Condition shall be satisfied. Each joinder agreement with a New Revolving Loan Lender not previously a Lender shall be subject to such Approved Increase the consent (not to be unreasonably withheld or delayed) of the Issuing Banks.
(b) On any Increased Amount Date on which New Revolving Loan Commitments are outstanding on effected, subject to the Increase Effective Datesatisfaction of the foregoing terms and conditions, (i) each of the Lenders of such Class having a with Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) Exposure shall assign to any Lender each of such Class which is acquiring an Incremental the New Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Loan Lenders”), and such each of the New Revolving Post-Increase Loan Lenders shall purchase from each Revolving Pre-Increase Lenderof the Lenders, at the principal amount thereofthereof (together with accrued interest), such interests in the Advances and participation interests in Letters of Credit Loans outstanding on such Increase Effective Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit Loans will be held by Revolving Pre-Increase existing Loan Lenders and New Revolving Post-Increase Loan Lenders ratably in accordance with their Pro Rata Share of such Class Revolving Commitments after giving effect to the addition of such Incremental New Revolving Credit Commitments.
(e) The Incremental Loan Commitments to the Revolving Commitments, (ii) each New Revolving Loan Commitment shall be deemed for all purposes a Revolving Commitment and loans each loan made pursuant thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Loan, (iii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Loan Commitment and all matters relating thereto, established and (iv) each existing Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Revolving Loan Lender, and each New Revolving Loan Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each deemed Assignment and Assumption of participations, all of the Lenders’ (including each New Revolving Loan Lender) participations hereunder in Letters of Credit shall be held on a pro rata basis on the basis of their respective Loan Commitments (after giving effect to any increase in the Loan Commitment pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.2.23
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Blue Apron Holdings, Inc.)
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, may by written notice to the Agent, Administrative Agent elect to request the establishment of one or more New Term Loan Commitments by an increase aggregate amount following the 2013 Refinancing Amendment Effective Date not in excess of the sum of (x) existing Term Loans such amount so long as, at the time of any Class (the commitments theretoincurrence of the Indebtedness thereunder, the “Incremental Term Loan Commitments”) and/or Senior Secured Leverage Ratio shall not exceed 3.50:1.00 on a Pro Forma Basis plus (y) existing Revolving Commitments $200,000,000. For the avoidance of any Class (“Incremental Revolving Credit Commitments” anddoubt, together with in the event that the Borrower exercises its right to incur Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of Loans pursuant to this Section 2.182.14 on a date on which the Senior Secured Leverage Ratio is no greater than 3.50:1.00 on a Pro Forma Basis, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase Term Loans shall be allocated solely to clause (x) of the foregoing limitation and shall not reduce the $200,000,000 amount provided for in a minimum principal amount clause (y) of such limitation. Each such notice requesting New Term Loan Commitments shall not be less than $5,000,000 unless otherwise agreed by the Agent10,000,000 individually. Each such notice shall specify the date (ieach, an “Increased Amount Date”) on which the amount of Borrower proposes that the proposed increaseNew Term Loan Commitments shall be effective, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) which shall be a date not less than ten Business Days after the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable notice is delivered to the Administrative Agent; provided that any Lender offered or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental New Term Loan Commitments, as applicable, Commitments may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental a New Term Loan Commitment. Such New Term Loan Commitments shall become effective, as applicable, and the Revolving Commitments of such Increased Amount Date; provided that (i) no Default or Terms Loans, as applicable, Event of Default shall only be increased exist on such Increased Amount Date before or after giving effect to the extent of Incremental Revolving Credit Commitments or Incremental such New Term Loan Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of New Term Loans, agreed 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 Permitted 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 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 provided delivered any legal opinions or other documents reasonably requested by Lenders or Eligible TransfereesAdministrative Agent in connection with any such transaction. Any Eligible Transferee who agrees 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 provide such Incremental Revolving Credit Commitment or Incremental the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender with a New Term Loan Commitment of any Series shall execute make a joinder agreement New Term Loan to which the Borrower in an amount equal to its New Term Loan Commitment of such Eligible Transferee 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 Weighted Average Life to Maturity of all New Term Loans of any Series shall be no shorter than the Weighted Average Life to Maturity of the Term Loans outstanding on the Increased Amount Date, (iii) the rate of interest and the amortization schedule applicable to the New Term Loans of each Series shall be determined by the Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided that in the event that the All-In Yield applicable to any New Term Loans incurred during the 18 month period following the Closing Date exceeds the All-In Yield of the Term Loans outstanding as of the Increased Amount Date by more than 50 basis points, then the 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 Term Loans is equal to the All-In Yield of such New Term Loans minus 50 basis points and (iv) all other terms applicable to the New Term Loans of each Series that differ from the existing Term Loans shall be reasonably acceptable to the Administrative Agent (whose consent thereto shall not be unreasonably withheld or delayedas evidenced by its execution of the applicable Joinder Agreement).
(e) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Each Joinder in connection with an Approved Increase, such Increase Joinder Agreement may, without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions provision of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.182.14.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Incremental Facilities. The Borrower may from time to time increase the Aggregate Revolving Commitments (each such increase, an “Incremental Facility”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or all Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto Facilities shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.exceed $25,000,000;
(b) The Incremental Loan Commitments with respect to an Approved Increase no Default shall become exist on the effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness date of such Incremental Revolving Credit Commitments Facility or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant would exist after giving effect to such Acquisition-Related Incremental CommitmentFacility;
(c) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, the specified representations or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior toon and as of the effective date of such Incremental Facility, except to the extent that such representations and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant warranties specifically refer to an Approved Increase earlier date, in which case they shall be identical to the terms true and provisions applicable to the relevant Class correct as of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).earlier date;
(d) With respect no existing Lender shall be under any obligation to provide any commitment to any Incremental Revolving Credit Commitments, Facility and any such decision whether to provide a commitment to an Incremental Facility hall be in such Lender’s sole and absolute discretion;
(e) each Incremental Facility shall be in an aggregate principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(f) each Person providing a commitment to an Incremental Facility shall qualify as an Eligible Assignee;
(g) the Borrower shall deliver to the extent any Advances or Letters Administrative Agent:
(i) a certificate of Credit each Loan Party dated as of the relevant Class subject date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to such Approved Increase Incremental Facility, the conditions in clause (b) and (c) above are true and correct;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(iii) opinions of legal counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender (including each Person providing a commitment to an Incremental Facility), dated as of the effective date of such Incremental Facility; and
(iv) a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (iv) assuming that such any then proposed Incremental Facility is fully drawn) the Loan Parties would be in compliance with the financial covenants set forth in Section 6.05 recomputed as of the end of the period of four fiscal quarters most recently for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b);
(h) such Incremental Facility shall have the same terms (including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders under such Incremental Facility) applicable to the Aggregate Revolving Commitments;
(i) if any Revolving Loans are outstanding on the Increase Effective Datedate of such increase, (x) each Lender providing such Incremental Facility shall make Revolving Loans, the proceeds of which shall be applied by the Administrative Agent to prepay Revolving Loans of the existing Lenders, in an amount necessary such that after giving effect thereto the outstanding Revolving Loans are held ratably among all of the Lenders of such Class having with a Revolving Commitment and (y) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving Loans of existing Lenders; and
(j) the existing Lenders with a Revolving Commitment shall on the effective date of such Class prior Incremental Facility be deemed to have made such assignments (which assignments shall not be subject to the Increase Effective Date (requirements set forth in Section 11.06(b)) of the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and outstanding participation interests in Letters of Credit on and Swing Line Loans to the Lenders providing such Increase Effective Date Incremental Facility and the Administrative Agent may make such adjustments to the Register as shall be are necessary in order so that, after giving effect to all such assignments and purchasesadjustments, each Lender with a Revolving Commitment (including the Lenders providing such Advances and Incremental Facility) will hold participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect Swing Line Loans equal to such Incremental Revolving Credit Commitmentsits pro rata share thereof.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Trex Co Inc)
Incremental Facilities. (a) The Borrower may, Company may on one or more occasions after the Restatement Effective Date and prior to the Maturity Dateoccasions, by written notice to the Administrative Agent, elect to request an increase in the establishment of Incremental Commitments; provided that the aggregate amount of all the Incremental Commitments established hereunder shall not exceed the sum of (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or US$125,000,000 and (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the AgentCommitments terminated under Section 2.16(b). Each such notice shall specify (i) the amount of date on which the proposed increaseCompany proposes that the Incremental Commitments shall be effective, if any, to the existing Revolving Commitments or Term Loans, as applicable, and (ii) the date on which such increase shall become effective amount of the Incremental Commitments being requested (the “Increase Effective Date”), and it being agreed that (iiix) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment and (y) any Person that the Company proposes to become an Incremental Lender, if such Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to the Administrative Agent and each Issuing Bank, in each case not to be unreasonably withheld, delayed or Incremental Term Loan Commitment, as applicable, conditioned and the Revolving Commitments or Terms Loans, as applicable, shall only be increased solely to the extent the consent of the Administrative Agent or the Issuing Banks, as the case may be, would be required for an assignment to such Person pursuant to Section 9.04).
(b) The terms and conditions of any Incremental Commitment and the Loans and other extensions of credit to be made thereunder shall be identical to those of the existing Commitments and the existing Loans and other extensions of credit made thereunder, it being understood that the Company, at its election, may pay upfront or other fees in connection with the establishment of Incremental Revolving Credit Commitments without paying such fees with respect to the existing Commitments.
(c) The Incremental Commitments shall be effected pursuant to one or more Incremental Term Loan CommitmentsFacility Agreements executed and delivered by the Company, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide each Incremental Lender providing such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee Commitments and the Administrative Agent (whose with the Administrative Agent hereby agreeing that its consent thereto shall not be unreasonably withheld withheld, conditioned or delayed); provided that no Incremental Commitments shall become effective unless: (i) are party (no Default or Event of Default shall have occurred and be continuing on the “Increase Joinder”). If date of effectiveness thereof, both immediately prior to and immediately after giving effect to such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, without Incremental Commitments and the consent making of any other Loans thereunder to be made on such date;
(d) Upon the effectiveness of an Incremental Commitment of any Incremental Lender, effect (i) such amendments Incremental Lender shall be deemed to this Agreement be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and under the other Loan Documents as may and shall be necessary or appropriatebound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents and (ii) such Incremental Commitment shall constitute (or, in the opinion event such Incremental Lender already has a Commitment, shall increase) the Commitment of such Incremental Lender and the AgentAggregate Commitment shall be increased by the amount of such Incremental Commitment, in each case, subject to effect the provisions of this Section 2.18. Unless otherwise specifically further increase or reduction from time to time as provided herein. For the avoidance of doubt, upon the effectiveness of any Incremental Commitment, the Applicable Percentages of all references in this Agreement and any other Loan Document the Lenders shall automatically be adjusted to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18give effect thereto.
(be) The On the date of effectiveness of any Incremental Loan Commitments with respect to an Approved Increase Commitments, (i) each Incremental Lender that shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) have had a Commitment prior to the effectiveness of such Incremental Revolving Credit Commitments or shall pay to the funding Administrative Agent in same day funds and in the applicable currency an amount equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose effectiveness of financing a Limited Condition Acquisition (“Acquisition-Related such Incremental Commitments”)) multiplied by (2) the amount of each Borrowing then outstanding and (B) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the amount of each such Borrowing, (ii) each Incremental Lender that shall not have had a Commitment prior to the effectiveness of such Incremental 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 Commitments) multiplied by (2) the amount of each Borrowing then outstanding, (iii) after the Administrative Agent receives the funds specified in clauses (i) and (ii) above, the condition set forth in Section 3.2(aAdministrative Agent shall pay to each Lender the portion of such funds that is equal to the difference between (A) the product of (1) such Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the amount of each Borrowing then outstanding, and (B) the product of (1) such Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of such Incremental Commitments) multiplied by (2) the amount of each such Borrowing, and (iv) each Lender shall be deemed to have been satisfied so long as, as hold its Applicable Percentage of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects each Borrowing then outstanding (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, calculated after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share the effectiveness of such Class after giving effect to such Incremental Revolving Credit Commitments).
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (White Mountains Insurance Group LTD)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Effective Date, on by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase (i) increases in the amount of the Special L/C Commitments (xeach such increase, a “Special L/C Commitment Increase”) existing Term Loans or (ii) additional tranches of any Class revolving letter of credit commitments (the commitments theretoeach, the an “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit CommitmentsSpecial L/C Facility” and, together with the Incremental Term Loan Commitmentsany Special L/C Commitment Increase, the referred to herein as a “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Credit Increase”); provided that (A) upon the effectiveness of any Incremental Amendment referred to below, by an aggregate amountno Default or Event of Default shall exist, (B) the Borrower may make a maximum of four requests for all such increases under this Section 2.18a Credit Increase, that does not exceed and (C) the Maximum Incremental Facilities AmountBorrower shall have received a Ratings Reaffirmation. Such Approved Each Credit Increase shall be in a minimum 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 in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of Credit Increases shall not exceed (i) $5,000,000 unless otherwise agreed 150,000,000 or (ii) when taken together with any other Debt incurred pursuant to Section 5.02(b)(iii), $650,000,000.
(b) Any Incremental Special L/C Facility (i) shall rank pari passu in right of payment and of security with the Special L/C Facility, (ii) shall not mature earlier than the Maturity Date, (iii) shall be treated substantially the same as the Special L/C Facility (in each case, including with respect to mandatory and voluntary prepayments), and (iv) if a Yield Differential exists, the Applicable Margin then in effect for Eurodollar Rate Advances shall be increased by the amount of such Yield Differential.
(c) Each notice from the Borrower pursuant to this Section 2.20 shall set forth the requested amount and proposed use and terms of the relevant Credit Increases and the requested allocation of such Credit Increases between the Tranche A Special L/C Facility and the Trance B Special L/C Facility. Credit Increases may be provided by any existing Lender Party (and each existing Lender will have the right to provide a portion of any Special L/C LSP Gen Finance Special L/C Facility Agreement Commitment Increase or Incremental Special L/C Facility, in each case on the terms permitted in this Section 2.20 and otherwise on terms reasonably acceptable to the Administrative Agent. Each ) or by any other bank or financial institution (any such notice shall specify bank or other financial institution being called an “Additional Lender”); provided that (i) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or declineAdministrative Agent and, in its sole discretionthe case of a Special L/C Commitment Increase, each Applicable Special L/C Issuing Bank shall have consented (such consent not to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If to such proposed Lenders or Additional Lender’s providing such Special L▇▇▇▇▇ agrees to execute an Increase Joinder /C Commitment Increases or Special L/C Facility, if such consent would be required in connection with an Approved Increaseassignment of Special L/C Advances or Special L/C Commitments, as applicable to such Lender or Additional Lender and (ii) one or more existing Issuing Banks or Additional Lenders shall have agreed to provide a Special L/C Issuing Commitment in an amount equal to the aggregate principal amount of such Special L/C Commitment Increase Joinder or Incremental Special L/C Facility.
(d) Commitments in respect of Credit Increases shall become Special L/C Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, appropriate in the reasonable opinion of the Agent, Administrative Agent and the Borrower to effect the provisions of this Section 2.182.20. Unless otherwise specifically provided herein, all references in this Agreement and The effectiveness of any other Loan Document to Loans Incremental Amendment shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, the satisfaction on the date thereof of each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), 3.02 and such Revolving Post-Increase Lenders other conditions as the parties thereto shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitmentsagree.
(e) The Incremental Loan Credit Increases shall be available solely for the purposes described in Section 2.19.
(f) No Lender Party shall be obligated to provide any Credit Increase, unless it so agrees.
(g) Upon each increase in the Tranche A Special L/C Commitments and loans made pursuant theretoor the Tranche B Special L/C Commitments, established as applicable, pursuant to clause (a)(ii)(A) of this Section shall constitute Loans 2.20, each Applicable Lender immediately prior to such increase will automatically and Commitments underwithout further act be deemed to have assigned to each Lender providing a portion of the Special L/C Commitment Increase (each a “Special L/C Commitment Increase Lender”) in respect of such increase, and each such Special L/C Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Applicable Lender’s participations hereunder in outstanding Tranche A Special Letters of Credit or Tranche B Special Letters of Credit, as applicable, such that after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Tranche A Special Letters of Credit or Tranche B Special Letters of Credit, as applicable, held by each Special L/C Lender (including each such Special L/C Commitment Increase Lender) will equal the percentage of the aggregate Tranche A Special L/C Commitments or Tranche B Special L/C Commitments, as applicable, of all Applicable Lenders represented by such Lender’s Special L/C Commitment and if, on the date of such increase, there are any Tranche A Special L/C Advances or Tranche B Special L/C Advances, as applicable, outstanding, such Special L/C Advances shall on or prior to the LSP Gen Finance Special L/C Facility Agreement effectiveness of such Special L/C Commitment Increase be prepaid from the proceeds of additional Tranche A Special L/C Advances or Tranche B Special L/C Advances, as applicable, made hereunder (reflecting such increase in Special L/C Commitments), which prepayment shall be entitled accompanied by accrued interest on the Special L/C Advances being prepaid and any costs incurred by any Lender in accordance with Section 9.04(c).
(h) This Section 2.20 shall supersede any provision in Section 2.17 or 9.01 to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documentscontrary.
Appears in 1 contract
Sources: Special Letter of Credit Facility Agreement (Dynegy Inc /Il/)
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, Company may by written notice to the Agent, Syndication Agent elect to request an increase the establishment of new term loan commitments (the "NEW TERM LOAN COMMITMENTS") on one occasion, in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed 25.0 million (or such lesser amount which shall be approved by the Administrative Agent and Syndication Agent). Each such Such notice shall specify (iA) the amount of date (the proposed increase"INCREASED AMOUNT DATE") on which Company proposes that the New Term Loan Commitments shall be effective, if any, to the existing Revolving Commitments or Term Loans, as applicable, which shall be a date not less than ten (ii10) Business Days after the date on which such increase shall become effective (the “Increase Effective Date”), notice is delivered to Syndication Agent and (iiiB) the identity of each Lender or other Person that is an Eligible Transferee Assignee (each, a "NEW TERM LOAN LENDER") to whom the Borrower Company proposes any portion of such Revolving Commitments or Incremental New Term Loan Commitments, as applicable, Commitments be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental New Term Loan Commitments, as applicable, Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. Such New Term Loan Commitments shall become effective as of the Increased Amount Date; provided that (1) no Default or Event of Default shall exist on the Increased Amount Date before or after giving effect to such Incremental Revolving New Term Loan Commitments; (2) both before and after giving effect to the making of any New Term Loans, each of the conditions set forth in Section 3.2 shall be satisfied; (3) Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in Section 6.8 as of the last day of the most recently ended Fiscal Quarter after giving effect to such New Term Loan Commitments; (4) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by Company, Syndication Agent and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 2.17(c); (5) Company shall make any payments required pursuant to Section 2.15(c) in connection with the New Term Loan Commitments; (6) 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; and (7) Administrative Agent shall have received a Borrowing Base Certificate, which shall be in form and substance reasonably satisfactory to Administrative Agent and which shall confirm that, on a pro forma basis, after giving effect to the New Term Loans requested on the applicable Credit Commitment or Incremental Date, the Borrowing Base then in effect shall exceed an amount equal to (A) 1.25 multiplied by (B) the outstanding principal amount of the Loans. On the Increased Amount Date on which any New Term Loan Commitments are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to Company (a "NEW TERM LOAN") in an amount equal to its New Term Loan Commitment, as applicable, and (ii) each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan Commitment and the Revolving New Term Loans made pursuant thereto. Administrative Agent shall notify the Lenders promptly upon receipt of Company's notice of the Increased Amount Date and in respect thereof the New Term Loan Commitments and the New Term Loan Lenders, subject to the assignments contemplated by this Section. The terms and provisions of the New Term Loan Commitments shall be, except as otherwise set forth herein or in any Joinder Agreement, identical to the Tranche B Term Loans. In any event (i) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the Tranche B Terms Loans, as applicable(ii) the New Term Loan Maturity Date shall be no shorter than the final maturity of the Tranche B Term Loans, shall only be increased (iii) the rate of interest applicable to the extent of Incremental Revolving Credit Commitments or Incremental New Term Loan Commitments, as applicable, agreed to Loans shall be provided determined by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee Company and the Agent (whose consent thereto applicable new Lenders and shall be set forth in each applicable Joinder Agreement; provided however that the interest rate applicable to the New Term Loans shall not be unreasonably withheld or delayed) are party (greater than the “Increase Joinder”)interest rate payable with respect to Tranche B Term Loans unless the interest rate with respect to the Tranche B Term Loans is increased so as to equal the interest rate applicable to the New Term Loans. If such proposed L▇▇▇▇▇ agrees to execute an Increase Each Joinder in connection with an Approved Increase, such Increase Joinder Agreement may, without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the opinion of the Syndication Agent and Administrative Agent, to effect the provisions of this Section 2.182.20. Unless otherwise specifically provided herein, all references in this Agreement and This Section 2.20 shall supersede any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth provisions in Section 3.2 shall be satisfied (or waived) prior 10.5 to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitmentcontrary.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, Borrowers may by written notice to the Agent, Administrative Agent elect to request an increase in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), Total Commitment (each increase that satisfies the terms such increase, a “Commitment Increase”, and conditions of this Section 2.18each Person issuing, or Lender increasing, its Commitment, an “Approved IncreaseAdditional Commitment Lender”), by an aggregate amount, for all ) such increases under this Section 2.18, that the Total Commitment does not exceed the Maximum Incremental Facilities Amount$325,000,000. Such Approved Increase Each such increase shall be in a minimum principal an aggregate amount of not less than $5,000,000 unless otherwise agreed individually (or such lesser amount as may be approved by the Administrative Agent). Each such notice shall specify the date (ieach, an “Increased Amount Date”) on which the amount of Borrowers propose that the proposed increaseCommitment Increase shall be effective, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) which shall be a date not less than ten Business Days after the date on which such increase shall become effective (notice is delivered to the “Increase Effective Date”), and (iii) the identity of each Administrative Agent. The Borrowers may approach any Lender or any Person (other Eligible Transferee than a natural person, Holdings, the Lead Borrower and any Subsidiary)(it being understood if such Person is an Affiliated Lender, such Person is subject to whom the Borrower proposes any requirements of Section 13.6(h) as if such Commitment Increase were an assignment described therein) to provide all or a portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the AgentCommitment Increase; provided that any Lender offered or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, Commitment Increase may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit a Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible TransfereesIncrease. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved IncreaseIn each case, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Commitment Increase shall become effective as of such Increase Effective the applicable Increased Amount Date; provided that, subject to Section 1.7, each that (i) no Default or Event of the conditions set forth in Section 3.2 Default shall be satisfied (exist on such Increased Amount Date before or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant after giving effect to such Acquisition-Related Incremental CommitmentCommitment Increase, (ii) all representations and warranties made by any Credit Party contained herein or in the specified representations other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Credit Event (or except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects if qualified as of such earlier date), (iii) the Commitment Increase shall be effected pursuant to one or more Joinder Agreements executed and delivered by materiality) immediately prior tothe Borrowers, the Additional Commitment Lenders and Administrative Agent, and immediately after giving effect toeach of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), (iv) the initial borrowing Borrowers shall make any payments required pursuant to Section 2.11 in connection with the Commitment Increase, as applicable, and (v) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in connection with any such Acquisition-Related Incremental Commitmenttransaction.
(cb) The terms In connection with Commitment Increases hereunder, the Lenders and provisions of Loans made pursuant to an Approved Increase shall be identical the Borrowers agree that, notwithstanding anything to the terms contrary in this Agreement, (i) the Borrowers shall, in coordination with the Administrative Agent, (A) repay outstanding Revolving Loans of certain Lenders, and provisions obtain Revolving Loans from certain other Lenders (including the Lenders providing the applicable to Commitment Increase), or (B) take such other actions as reasonably may be required by the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other thanAdministrative Agent, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, each case to the extent any Advances or Letters of Credit necessary so that all of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, Lenders effectively participate in each of the Lenders of such Class having a outstanding Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment Loans pro rata on the Increase Effective Date basis of their Pro Rata Shares, as applicable (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, determined after giving effect to all such assignments and purchases, such Advances and participation interests any increase in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan the Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under2.14), and (ii) the Borrowers shall be entitled pay to all the benefits afforded byLenders any costs of the type referred to in Section 2.11 in connection with any repayment and/or Revolving Loans required pursuant to preceding clause (i). Without limiting the obligations of the Borrowers provided for in this Section 2.14, this Agreement the Administrative Agent and the other Loan Documents, and shall, without limiting Lenders agree that they will use their commercially reasonable efforts to minimize the foregoing, benefit equally and ratably from costs of the guarantees and security interests created by type referred to in Section 2.11 which the Loan DocumentsBorrowers would otherwise incur in connection with the implementation of an increase in the Commitments.
Appears in 1 contract
Incremental Facilities. This Agreement and the other Loan Documents may be amended at any time after the Closing Date to add one or more tranches of term loans (each an “Incremental Term Facility”) and/or increase the Aggregate Revolving Commitments (each such increase, an “Incremental Revolving Increase”; each Incremental Term Facility and each Incremental Revolving Increase is an “Incremental Facility”), at the option of the Borrower by an agreement in writing entered into by the Borrower, the Guarantors, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each, an “Incremental Facility Amendment”); provided that:
(a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing Term Loans aggregate principal amount of any Class (the commitments thereto, the “all Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does Facilities shall not exceed the Maximum $200 million;
(b) such Incremental Facilities Amount. Such Approved Increase Facility shall be in a minimum principal amount of at least $5,000,000 unless otherwise agreed by 15 million and integral multiples of $1 million in excess thereof;
(c) no Default shall exist on the Agent. Each effective date of such notice shall specify Incremental Facility or would exist after giving effect to such Incremental Facility;
(id) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), representations and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, warranties contained in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, without the consent of any other Lender, effect such amendments to this Agreement Article V and the other Loan Documents as may be necessary or appropriate, in the opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be are true and correct in all material respects (or as of the effective date of such Incremental Facility, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects if as of such earlier date (unless such representations and warranties are qualified by as to “materiality) immediately prior to” or “Material Adverse Effect”, in which case, they are true and correct in all respects), and immediately except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01;
(e) no existing Lender shall be under any obligation to participate in such Incremental Facility and any such decision whether to participate in such Incremental Facility shall be in such Lender’s sole and absolute discretion;
(f) each Person participating in such Incremental Facility shall qualify as an Eligible Assignee;
(g) the Borrower shall deliver to the Administrative Agent:
(i) a certificate of each Loan Party dated as of the date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) certifying that the conditions set forth in Sections 2.14(c) and (d) are true and correct as of such date;
(ii) customary opinions of legal counsel to the Loan Parties, addressed to the Administrative Agent and each Lender (including each Person providing an Incremental Facility Commitment), dated as of the effective date of such Incremental Facility;
(h) the Borrower shall have delivered to the Administrative Agent a Compliance Certificate demonstrating that after giving effect toto the incurrence of such Incremental Facility the Loan Parties would be in compliance with the financial covenants set forth in Section 7.10 on a Pro Forma Basis;
(i) in the case of an Incremental Term Facility:
(i) the final maturity date for such Incremental Term Facility shall not be earlier than the later of the Maturity Date or the final maturity date of any other Incremental Facility;
(ii) the weighted average life for such Incremental Term Facility shall not be shorter than the then remaining weighted average life of any other Incremental Term Facility; and
(iii) subject to the foregoing clauses, the initial borrowing pursuant to other terms of such Acquisition-Related Incremental CommitmentTerm Facility (including interest rate, interest rate margins, interest rate floors, fees, original issue discount, call protection or prepayment penalty, amortization and final maturity date) shall be as agreed by the Borrower and the Persons providing such Incremental Term Facility and approved by the Administrative Agent.
(cj) The terms and provisions in the case of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit CommitmentsIncrease, to the extent if any Advances or Letters of Credit of the relevant Class subject to such Approved Increase Committed Loans are outstanding on the date of such increase, (x) each Lender providing such Incremental Revolving Increase Effective Dateshall make Committed Loans, each the proceeds of which shall be applied by the Administrative Agent to prepay Committed Loans of the existing Lenders, in an amount necessary such that after giving effect thereto the outstanding Committed Loans are held ratably among all of the Lenders of such Class having with a Revolving Commitment and (y) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such Class prior prepayment of Committed Loans of existing Lenders. The commitments to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), Facility and such Revolving Post-Increase Lenders credit extensions thereunder shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan constitute Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments Credit Extensions under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents. The Lenders hereby authorize the Administrative Agent to enter into, and shallthe Lenders agree that this Agreement and the other Loan Documents shall be amended by, without limiting each Incremental Facility Amendment to the foregoing, benefit equally extent the Administrative Agent deems necessary in order to establish the applicable Incremental Facility and ratably from the guarantees and security interests created to effect such other changes agreed by the Loan Documents.Borrower and the Persons providing such Incremental Facility and approved by the Administrative Agent; provided, however, that the Incremental Facility Amendment shall not effect any change described in Section 10.01(a) through (g) without the consent of each Person required to consent to such change under such clause (it being agreed, however, that any Incremental Revolving Increase or establishment of any Incremental Term Facility will not, of itself, be deemed to effect
Appears in 1 contract
Sources: Credit Agreement (McGrath Rentcorp)
Incremental Facilities. (ai) 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 requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Facility” and any loan made pursuant to any Incremental Facility, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(1) no Incremental Commitment in respect of any Incremental Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
(2) except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility),
(3) no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
(4) except as otherwise permitted herein (including with respect to margin, pricing (including any MFN provision), maturity, Weighted Average Life to Maturity and fees), the terms of any Incremental Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be reasonably acceptable to the Administrative Agent (it being agreed that any terms contained in such Incremental Facility (w) that are not materially less favorable to the Borrower (taken as a whole) than those contained in the Loan Documents (as determined in good faith by the Borrower), (x) which are applicable only after the Restatement Effective Date and prior to the then-existing Latest Maturity Date, (y) that is unsecured, which terms reflect market terms and conditions (taken as a whole) for issuances of “high yield” securities at the time of incurrence or issuance (as determined by written notice the Borrower in good faith) and/or (z) that are more favorable to the lenders or the agent of such Incremental Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or the Administrative Agent, elect as applicable, pursuant to request the applicable Incremental Facility Amendment (which shall not require the consent of any existing Lender or the Administrative Agent) shall, in each case be deemed to be satisfactory to the Administrative Agent; provided that notwithstanding the foregoing, a “financial maintenance covenant” applicable to any Incremental Facility that is a “term loan A” may be added to the Loan Documents or included in the applicable documentation for such Incremental Facility and need not be conformed or added to any existing Class),
(5) the Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that that during the period commencing on the Closing Date and ending on the date that is twelve months after the Closing Date, the Effective Yield applicable to any Incremental Facility which consists of syndicated secured term loans (other than Customary Bridge Loans) that are pari passu with the Initial Term Loans in right of payment and with respect to security may not be more than 0.50% per annum higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility; provided, further, that any increase in Effective Yield applicable to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or Term SOFR floor on any Incremental Loan may, at the election of the Borrower, be effected through an increase in the Alternate Base Rate floor or Term SOFR floor applicable to such Initial Term Loan; provided, further, that this Section 2.22(a)(v) shall not apply (x) existing Term Loans in respect of any Class (Incremental Facility the commitments theretoproceeds of which will be applied to finance a Permitted Acquisition or other Investment that is permitted hereunder, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments in respect of any Class Incremental Facility having a final maturity date that is greater than two years after the Initial Term Loan Maturity Date or (“z) if the aggregate principal amount of such Incremental Revolving Credit Commitments” and, Loans (together with the aggregate principal amount of all other Incremental Term Loan CommitmentsLoans excluded in reliance on this clause (z), the aggregate principal amount of all Incremental Equivalent Debt incurred in reliance on clause (z) to the final proviso of the definition of “Incremental Loan Commitments”Equivalent Debt” and the aggregate principal amount of all term loan Indebtedness secured on a pari passu basis with the Liens securing the Term Loans and incurred in reliance on clause (iii) of the final proviso to clause (z) of Section 6.01(w), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that ) does not exceed the Maximum greater of $280,000,000 and 50% of Consolidated Adjusted EBITDA of the Borrower and its Restricted Subsidiaries as of the last day of the most recently ended Test Period in the aggregate,
(6) except with respect to Customary Bridge Loans and Incremental Facilities Loans in an aggregate principal amount not to exceed the Maturity Limitation Excluded Amount. Such Approved Increase , the final maturity date with respect to any Class of Incremental Loans shall be no earlier than the Latest Maturity Date,
(7) except with respect to Customary Bridge Loans and Incremental Loans in a minimum an aggregate principal amount not to exceed the Maturity Limitation Excluded Amount, the Weighted Average Life to Maturity of $5,000,000 unless any Incremental Facility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect to any prepayment thereof),
(8) subject to clauses (vi) and (vii) above, any Incremental Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Facility,
(9) 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,
(10) (A) any Incremental Facility may rank pari passu with or junior to any then-existing tranche of Term Loans in right of payment and/or security or may be unsecured (and to the extent the relevant Incremental Facility is secured and not incurred under the Loan Documents, it shall be subject to an 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 asset of the Borrower and/or any Restricted Subsidiary other than the Collateral,
(11) except as otherwise agreed by the Agent. Each lender or lenders providing the relevant Incremental Facility in connection with any acquisition or similar Investment, no Event of Default under Section 7.01(a), or with respect to the Borrower, Section 7.01(f) or (g) shall exist immediately prior to or after giving effect to such notice shall specify Incremental Facility,
(i12) the amount any Incremental Facility may participate (A) in any voluntary prepayment of the proposed increaseTerm Loans as set forth in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi), if anyin each case, to the extent provided in such Sections,
(13) the proceeds of any Incremental Facility may be used for Acquisitions, Investments, Restricted Payments, Restricted Debt Payments, working capital and/or purchase price adjustments and other general corporate purposes and any other use not prohibited by this Agreement, and
(14) on the date of the Borrowing of any Incremental Loans that will be of the same Class as any then-existing Revolving Commitments or Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such Incremental Loans shall be added to (and constitute a part of, be of the same Type as applicableand, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental 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 Loans having an Interest Period (the duration of which may be less than one month) that begins during an Interest Period then applicable to outstanding Term SOFR Loans of the relevant Class and which ends on the last day of such Interest Period.
(ii) the date on which Incremental Commitments may be provided by any existing Lender, or by any other Eligible Assignee (any such increase shall become effective (the other lender being called an “Increase Effective DateIncremental Lender”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached the Administrative Agent shall have a right to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, consent (such consent not to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party to the relevant Incremental Lender’s provision of Incremental Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Incremental Lender.
(iii) Each Lender or Incremental Lender providing a portion of any Incremental Commitment shall execute and deliver to the “Increase Joinder”)Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. If On the effective date of such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder Incremental Commitment, each Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
(iv) As conditions precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender, an Approved IncreaseAdministrative Questionnaire and such other documents as it shall reasonably require from such Incremental Lender, (iii) the Administrative Agent, on behalf of the Incremental Lenders, or the Incremental Lenders, as applicable, shall have received the amount of any fees payable to the Incremental Lenders in respect of such Incremental Facility or Incremental Loans, (iv) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans and (B) to the extent applicable, certifying that the condition set forth in clause (a)(xi) above has been satisfied.
(v) [Reserved];
(vi) [Reserved].
(vii) The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22, such Increase Joinder may, without the consent of any other Lender, effect such technical amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, appropriate in the reasonable opinion of the AgentAdministrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, to effect the provisions of in each case on terms consistent with this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement 2.22 and any such other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective amendments as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth are described in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees9.02(d)(ii).
(dviii) With respect Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds of any Incremental Revolving Credit CommitmentsFacility are intended to be applied to finance an acquisition or other Investment and the lenders providing such Incremental Facility so agree, to the extent any Advances or Letters of Credit of the relevant Class availability thereof shall be subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the customary “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the SunGard” or “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitmentscertain funds” conditionality.
(eix) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant This Section 2.22 shall supersede any provision in Sections 2.18 or 9.02 to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documentscontrary.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, on elect to request the establishment of one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase additional tranches of term loans or increases in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental New Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does amount not exceed in excess of the Maximum Incremental Facilities Amount. Such Approved Increase shall Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be in a minimum principal amount of $5,000,000 unless otherwise agreed approved by the AgentAdministrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Term Loan Commitments obtained on or prior to such date) which may be Incurred in Dollars, Euros or Pounds Sterling. Each such notice shall specify The Borrower may approach any Lender or any Person (iother than a natural Person) the amount to provide all or a portion of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or Incremental New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender offered or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental New Term Loan Commitments, as applicable, Commitments may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental a New Term Loan Commitment. In each case, such New Term Loan Commitments shall become effective as applicableof the applicable Increased Amount Date; provided that (i) no Event of Default (except in connection with a Limited Condition Transaction, and other Permitted Acquisition or Permitted Investment, in which case the Revolving Commitments standard shall be no Event of Default under Section 11.1 or Terms Loans, as applicable, Section 11.5) shall only be increased exist on such Increased Amount Date before or after giving effect to the extent of Incremental Revolving Credit Commitments or Incremental such New Term Loan Commitments, as applicable, and subject to Section 1.12, (ii) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable. No Lender shall have any obligation to provide any Commitments pursuant to this Section 2.14(a). Any New Term Loans made on an Increased Amount Date shall, at the election of the Borrower and agreed to be provided by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or Eligible Transferees. Any Eligible Transferee who agrees (b) as part of a Series of existing Term Loans for all purposes of this Agreement.
(b) [Reserved].
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are effective, subject to provide such Incremental Revolving Credit Commitment or Incremental the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall execute make a joinder agreement Loan to which the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Eligible Transferee Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the then existing Initial Term Loans as calculated without giving effect to any prepayments made in connection with the Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any broadly syndicated New Term Loan Incurred pursuant to clause (i) of the definition of Maximum Incremental Facilities Amount that matures earlier than the date that is two years after the Initial Term Loan Maturity Date, only during the period commencing on the Closing Date and ending on the date that is six months after the Closing Date, if the Effective Yield for LIBORSOFR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBORSOFR Loans or ABR Loans in respect of the then existing Initial Term Loans of the same currency by more than 0.50%, the Applicable Margin for LIBORSOFR Loans or ABR Loans in respect of the then existing Initial Term Loans of the same currency shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans of the same currency is equal to the Effective Yield for LIBORSOFR Loans or ABR Loans in respect of the New Term Loans minus 0.50%; provided that, any amendments to the applicable margin on the Initial Term Loans that became effective subsequent to the Restatement Effective Date but prior to the time of such New Term Loans shall be included in the calculation of the Effective Yield (the terms of this proviso to this clause (iii), the “MFN Protection”); and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (whose it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, no consent thereto shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is added for the benefit of any corresponding Term Loans remaining outstanding after the issuance or incurrence of such Indebtedness and (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date); provided, further, that (x) clauses (i) and (ii) shall not be unreasonably withheld apply to up to an amount equal to the greater of (A) $480,000,000 or delayed(B) are party 100% of Consolidated EBITDA for the four consecutive fiscal quarters of the Borrower most recently ended on or prior to such date of determination in respect of New Term Loans or Permitted Other Indebtedness (as selected by the Borrower) (the “Increase JoinderMaturity Carveout Amount”). If such proposed L▇▇▇▇▇ agrees ) and (y) the MFN Protection shall not apply to execute an Increase Joinder (I) up to the greater of (A) $480,000,000 and (B) 100.0% of Consolidated EBITDA for the most recently ended Test Period (as selected by the Borrower) of New Term Loans and (II) any New Term Loans Incurred in connection with an Approved Increase, such Increase a Permitted Acquisition or other Permitted Investment.
(e) [Reserved].
(f) Each Joinder Agreement may, without the consent of any other LenderLenders, effect such technical and corresponding amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions provision of this Section 2.182.14.
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). Unless otherwise specifically In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the Credit Parties (as determined in good faith by the Borrower), when taken as a whole, than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (iv) of this Section 2.14(g) below), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided hereinin the applicable Extension Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, all references no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Agreement and Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the penultimate sentence of Section 5.1(a). No Lender shall have any other obligation to agree to have any of its Term Loans of any Existing Term Loan Document Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(i) [Reserved].
(ii) Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans converted into Extended Term Loans shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans. In the event that the aggregate amount of Term Loans of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans requested pursuant to the Extension Request or Loans of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans on a pro rata basis based on the amount of Loans in each such Extension Election.
(iii) Extended Term Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the penultimate sentence of this Section 2.18.
(b2.14(g)(iv) The Incremental Loan Commitments with respect and notwithstanding anything to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions contrary set forth in Section 3.2 13.1, shall be satisfied (or waived) prior not require the consent of any Lender other than the Extending Lenders with respect to the effectiveness Extended Term Loans established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of such Incremental Revolving Credit Commitments Extended Term Loans in an aggregate principal amount that is less than $10,000,000. In addition to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment (x) shall amend the scheduled amortization payments pursuant to Section 2.5 or the funding applicable Joinder Agreement with respect to the Existing Term Loan Class from which the Extended Term Loans were converted to reduce each scheduled Repayment Amount for the Existing Term Loan Class in the same proportion as the amount of Term Loans of the relevant Incremental Existing Term Loan Commitments; provided, further, that, Class is to be converted pursuant to such Extension Amendment (it being understood that the amount of any Repayment Amount payable with respect to any Incremental individual Term Loan Commitment of such Existing Term Loan Class that is not an Extended Term Loan shall not be reduced as a result thereof) and (y) may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14(g) and without limiting the generality or applicability of Section 13.1 to any Section 2.14 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional Amendment”) to this Agreement and the primary purpose other Credit Documents; provided that such Section 2.14 Additional Amendments are within the requirements of financing a Limited Condition Acquisition Section 2.14(g)(i) and do not become effective prior to the time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans provided for in any Extension Amendment) by such of the Lenders, Credit Parties and other parties (if any) as may be required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1.
(iv) Notwithstanding anything to the contrary contained in this Agreement, on any date on which any Existing Class is converted to extend the related scheduled maturity date(s) in accordance with clause (i) above (an “Acquisition-Related Incremental CommitmentsExtension Date”), the condition set forth in Section 3.2(a) aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to have been satisfied the aggregate principal amount of Extended Term Loans so long asconverted by such Lender on such date, as of and the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations Extended Term Loans shall be true and correct in all material respects established as a separate Class of Term Loans (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to together with any other Extended Term Loans so established on such Acquisition-Related Incremental Commitmentdate).
(cv) The terms Administrative Agent and provisions of Loans made pursuant to an Approved Increase shall be identical the Lenders hereby consent to the terms and provisions applicable to consummation of the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date transactions contemplated by this Section 2.14 (other thanincluding, for the avoidance of doubt, differences payment of any interest, fees, or premium in upfront fees).
(d) With respect to of any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of Extended Term Loans on such terms as may be set forth in the relevant Class subject to Extension Amendment) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to extension or any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held other transaction contemplated by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents2.14.
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Incremental Facilities. After the Revolving B Commitments have been terminated and the Total Revolving B Outstandings are $0, the Borrower may from time to time increase the Aggregate Revolving A Commitments (each such increase, an “Incremental Facility”) to this Agreement at the option of the Borrower by an agreement in writing entered into by the Loan Parties, the Administrative Agent and each Person (including any existing Lender) that agrees to provide a portion of such Incremental Facility (each an “Incremental Facility Amendment”); provided that:
(a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (i) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Revolving Commitments or all Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto Facilities shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.exceed $100,000,000;
(b) The Incremental Loan Commitments with respect to an Approved Increase no Default shall become exist on the effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness date of such Incremental Revolving Credit Commitments Facility or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant would exist after giving effect to such Acquisition-Related Incremental CommitmentFacility;
(c) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, the specified representations or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior toon and as of the effective date of such Incremental Facility, except to the extent that such representations and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant warranties specifically refer to an Approved Increase earlier date, in which case they shall be identical to the terms true and provisions applicable to the relevant Class correct as of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).earlier date;
(d) With respect no existing Lender shall be under any obligation to provide any commitment to any Incremental Revolving Credit Commitments, Facility and any such decision whether to provide a commitment to an Incremental Facility hall be in such Lender’s sole and absolute discretion;
(e) each Incremental Facility shall be in an aggregate principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof;
(f) each Person providing a commitment to an Incremental Facility shall qualify as an Eligible Assignee;
(g) the Borrower shall deliver to the extent any Advances or Letters Administrative Agent:
(i) a certificate of Credit each Loan Party dated as of the relevant Class subject date of such Incremental Facility signed by a Responsible Officer of such Loan Party (A) certifying and attaching resolutions adopted by the board of directors or equivalent governing body of such Loan Party approving such Incremental Facility and (B) in the case of the Borrower, certifying that, before and after giving effect to such Approved Increase Incremental Facility, the conditions in clause (b) and (c) above are true and correct;
(ii) such amendments to the Collateral Documents as the Administrative Agent may reasonably request to cause the Collateral Documents to secure the Obligations after giving effect to such Incremental Facility (collectively “Collateral Document Amendments”);
(iii) opinions of legal counsel to the Loan Parties in form and substance reasonably acceptable to the Administrative Agent, addressed to the Administrative Agent and each Lender (including each Person providing a commitment to an Incremental Facility), dated as of the effective date of such Incremental Facility; and
(iv) a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (and for purposes of the calculations under this clause (iv) assuming that such any then proposed Incremental Facility is fully drawn) the Loan Parties would be in compliance with the financial covenants set forth in Section 6.03 recomputed as of the end of the period of four Fiscal Quarters most recently for which the Borrower has delivered financial statements pursuant to Section 6.01(a) or (b);
(h) such Incremental Facility shall have the same terms (including interest rate and interest rate margins but excluding upfront fees payable solely to the Lenders under such Incremental Facility) applicable to the Aggregate Revolving A Commitments;
(i) if any Revolving A Loans are outstanding on the Increase Effective Datedate of such increase, (x) each Lender providing such Incremental Facility shall make Revolving A Loans, the proceeds of which shall be applied by the Administrative Agent to prepay Revolving A Loans of the existing Revolving A Lenders, in an amount necessary such that after giving effect thereto the outstanding Revolving A Loans are held ratably among all of the Revolving A Lenders with a Revolving A Commitment and (y) the Borrower shall pay an amount required pursuant to Section 3.05 as a result of any such prepayment of Revolving A Loans of existing Revolving A Lenders; and
(j) the existing Revolving A Lenders with a Revolving A Commitment shall on the effective date of such Class having a Revolving Commitment of Incremental Facility be deemed to have made such Class prior assignments (which assignments shall not be subject to the Increase Effective Date (requirements set forth in Section 11.06(b)) of the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and outstanding participation interests in Letters of Credit on and Swing Line Loans to the Lenders providing such Increase Effective Date Incremental Facility and the Administrative Agent may make such adjustments to the Register as shall be are necessary in order so that, after giving effect to all such assignments and purchasesadjustments, each Revolving A Lender with a Revolving A Commitment (including the Lenders providing such Advances and Incremental Facility) will hold participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect Swing Line Loans equal to such Incremental Revolving Credit Commitmentsits pro rata share thereof.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
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Sources: Credit Agreement (Trex Co Inc)
Incremental Facilities. (a) The Borrower maymay at any time or from time to time after the Effective Date, on by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Agent, elect to request an increase in the additional tranches of term advances (x) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan CommitmentsAdvances”) and/or to be used as General Working Capital Credit Increases or Ontelaunee Credit Increases, (yii) existing Revolving Commitments one or more tranches of any Class working capital commitments (each, an “Incremental Revolving Working Capital Facility”) to be used as General Working Capital Credit CommitmentsIncreases or Ontelaunee Credit Increases or (iii) one or more tranches of funded letter of credit commitments (each a “Synthetic L/C Facility” and, together with the any Incremental Term Loan CommitmentsAdvances and Incremental Working Capital Facility, the referred to herein as a “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Credit Increase”); provided that (A) upon the effectiveness of any Incremental Amendment referred to below, by an aggregate amountno Default or Event of Default shall exist and at the time that any such Incremental Term Advance is made (and after giving effect thereto) no Default or Event of Default shall exist, (B) the Borrower may make a maximum of four requests for all such increases under this Section 2.18a Credit Increase, that does not exceed and (C) the Maximum Incremental Facilities AmountBorrower shall have received a Ratings Reaffirmation. Such Approved Each Credit Increase shall be in a minimum 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 in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of (x) General Working Capital Credit Increases shall not exceed $5,000,000 unless otherwise agreed by the Agent. Each such notice 100,000,000 when taken together with any other Debt incurred pursuant to Section 5.02(b)(v), (y) Ontelaunee Credit Increases shall specify not exceed $165,000,000 when taken together with any other Debt incurred pursuant to Section 5.02(b)(iv) and (z) Synthetic L/C Facilities shall not exceed $650,000,000 when taken together with any other Debt incurred pursuant to Section 5.02(b)(iii).
(b) Any Incremental Term Advances and any Synthetic L/C Facility (i) shall rank pari passu in right of payment and of security with the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicableother Advances, (ii) shall not mature earlier than the date on which such increase Maturity Date and shall become effective have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of the Advances, (iii) shall be treated substantially the “Increase Effective Date”same as the Advances (in the case of the Incremental Term Advances, including with respect to mandatory and voluntary prepayments), and (iii) if a Yield Differential exists, the identity LSP Gen Finance Second Lien Credit Agreement Applicable Margin then in effect for Eurodollar Rate Advances shall be increased by the amount of each such Yield Differential. The Incremental Working Capital Facility (i) shall rank pari passu in right of payment and of security with the Facility, and (ii) if a Yield Differential exists, the Applicable Margin then in effect for Eurodollar Rate Advances shall be increased by the amount of such Yield Differential.
(c) Each notice from the Borrower pursuant to this Section 2.16 shall set forth the requested amount and proposed use and terms of the relevant Credit Increases. Credit Increases may be provided by any existing Lender or by any other Eligible Transferee to whom the Borrower proposes bank or financial institution (any portion of such Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender bank or other Eligible Transferee shall reasonably acceptable to the Agentfinancial institution being called an “Additional Lender”); provided that any Lender or other Eligible Transferee approached (i) the Administrative Agent shall have consented (such consent not to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If to such proposed Lenders or Additional Lender’s making such Incremental Term Advances or providing such Incremental Working Capital Facility or Synthetic L▇▇▇▇▇ agrees to execute an Increase Joinder /C Facility, if such consent would be required in connection with an Approved Increaseassignment of Advances or Commitments, as applicable to such Increase Joinder Lender or Additional Lender and (ii) with respect to any Synthetic L/C Facility, an Additional Lender shall have agreed to act as issuing bank therefor.
(d) Commitments in respect of Credit Increases shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, appropriate in the reasonable opinion of the Agent, Administrative Agent and the Borrower to effect the provisions of this Section 2.182.16. Unless otherwise specifically provided herein, all references in this Agreement and The effectiveness of any other Loan Document to Loans Incremental Amendment shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, the satisfaction on the date thereof of each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”Sections 3.01(n), the condition set forth in Section 3.2(a(o) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materialityp) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders other conditions as the parties thereto shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitmentsagree.
(e) The Incremental Loan Commitments Borrower will use the proceeds of (i) any General Working Capital Credit Increase solely as contemplated by the definition thereof and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and (ii) any Ontelaunee Credit Increase solely as contemplated by the definition thereof.
(f) No Lender shall be entitled obligated to all provide any Credit Increase, unless it so agrees.
(g) This Section 2.16 shall supersede any provision in Section 2.13 or 9.01 to the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documentscontrary.
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Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, may by written notice to the Agent, Administrative Agent elect to request an increase in request, prior to the Latest Maturity Date, additional term loans hereunder (x) existing Term Loans of any Class (the commitments theretosuch additional term loans, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit CommitmentsLoans” and, together with and the Incremental Term Loan Commitmentscommitments therefor, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by ) in an aggregate amount, principal amount (x) for all such increases under this Section 2.18additional term loans and all Revolver Increases (as defined in the Revolving Credit Agreement) not in excess of $75,000,000 and (y) on any Incremental Closing Date, that does not exceed equal to, unless otherwise approved by the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount Administrative Agent, $10,000,000 or any integral multiple of $5,000,000 unless otherwise agreed by the Agentin excess thereof. Each such notice shall specify (iA) the amount date (each, an “Incremental Closing Date”) on which the Borrower proposes that the Incremental Loans shall be made, which shall be a date not less than 10 Business Days (or such lesser number of the proposed increase, if any, days as may be acceptable to the existing Revolving Commitments or Term Loans, as applicable, (iiAdministrative Agent) after the date on which such increase shall become effective (notice is delivered to the “Increase Effective Date”), Administrative Agent and (iiiB) the identity of each Lender or other Eligible Transferee Person that is an eligible assignee pursuant to Section 13.6(b) to whom the Borrower proposes any portion of such Revolving Incremental Commitments or Incremental Term Loan Commitments, as applicable, be allocated (each, an “Incremental Lender”) and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that (i) no Incremental Lender that is not an existing Lender, an Affiliate of a Lender or an Approved Fund shall provide Incremental Loans unless the Administrative Agent shall have consented thereto (such consent not to be unreasonably withheld or delayed) and (ii) any Lender or other Eligible Transferee approached to provide all or a portion of the any Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, Loans may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Loans. Such Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless made on the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Closing Date; provided that, subject to Section 1.7, each that (1) no Default or Event of the conditions set forth in Section 3.2 Default shall be satisfied (or waived) prior to the effectiveness of exist on such Incremental Revolving Credit Commitments Closing Date before or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant after giving effect to such Acquisition-Related Incremental Commitment, Loans; (2) all representations and warranties made by any Credit Party contained herein or in the specified representations other Credit Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) with the same effect as though such representations and warranties had been made on and as of the date of such Incremental Closing Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects if (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) as of such earlier date); (3) the Incremental Loans shall be effected pursuant to one or more Joinder Agreements executed and delivered by materiality) immediately prior tothe Borrower, the Incremental Lenders and the Administrative Agent, and immediately each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d); (4) the Credit Parties shall deliver or cause to be delivered any legal opinions or other documents (including without limitation guarantee and collateral reaffirmation agreements) reasonably requested by Administrative Agent in connection with any such transaction (it being understood that any such items that are substantially consistent with those delivered on the Closing Date shall be satisfactory); (5) the Senior Secured Leverage Ratio as of the Incremental Closing Date after giving effect toto the Incremental Loans on a pro forma basis shall be less than or equal to 3.0 to 1.0; (6) the maturity date of such Incremental Loans shall be no earlier than the Initial Loan Maturity Date; (7) the Weighted Average Life to Maturity of such Incremental Loans shall be no shorter than the Weighted Average Life to Maturity, as of such Incremental Closing Date, of the initial borrowing Initial Loans outstanding as of such Incremental Closing Date; (8) the All-In Yield of the Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders (provided that the All-In Yield applicable to such Incremental Loans shall not be greater than the All-In Yield for the Initial Loans plus 50 basis points per annum unless the ABR Margin and the Eurodollar Margin are increased so as to cause the All-In Yield for the Initial Loans to equal the All-In Yield for such Incremental Loans minus 50 basis points per annum); (9) such Incremental Loans shall be secured by a pari passu lien on the Collateral securing the Loans and shall be guaranteed by all of the Subsidiary Guarantors; and (10) such Incremental Loans shall be on terms and pursuant to a fully executed Joinder Agreement (provided that, to the extent such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant documentation are not consistent with the existing Credit Documents (except to an Approved Increase the extent permitted by clause (6), (7) or (8) above), they shall be identical reasonably satisfactory to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront feesAdministrative Agent).
(db) With respect to Any Incremental Loans made on an Incremental Closing Date shall be designated a separate series (a “Series”) of Incremental Loans for all purposes of this Agreement. On any Incremental Revolving Credit CommitmentsClosing Date on which any Incremental Commitments of any Series are effective, subject to the extent any Advances or Letters of Credit satisfaction of the relevant Class subject to such Approved Increase are outstanding on foregoing terms and conditions and any additional terms and conditions set forth in the Increase Effective Dateapplicable Joinder Agreement, (i) each Incremental Lender with an Incremental Commitment of the Lenders of such Class having a Revolving applicable Series shall make an Incremental Loan to the Borrower in an amount equal to its Incremental Commitment of such Class prior Series, and (ii) each Incremental Lender of any Series shall become a Lender hereunder with respect to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender Incremental Commitment of such Class which is acquiring an Series and the Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share Loans of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans Series made pursuant thereto, . The Incremental Commitment and Incremental Loans established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees Guarantees and security interests created by the Loan Security Documents. The Administrative Agent, the Collateral Agent and the Credit Parties (without the consent any Lender that would otherwise be required under Section 13.1) may effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effectuate the provisions of this Section 2.15.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, may by written notice to the Agent, Administrative Agent elect to request prior to the Revolving Commitment Termination Date, an increase in to the existing Revolving Commitment (x) existing Term Loans of any Class (the commitments theretosuch increase, the “Incremental Term New Revolving Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an amount in the aggregate amount, for all such increases under this Section 2.18, that does not exceed in excess the Maximum Incremental Facilities Amount. Such Approved Increase Amount and not less than $10,000,000 individually in the case of the first such New Revolving Loan Commitment and not less than $5,000,000 individually in the case of each subsequent New Revolving Loan Commitment (or, in each case, such lesser amount which shall be in a minimum principal amount of $5,000,000 unless otherwise agreed approved by the Administrative Agent). Each such notice shall specify (i) the amount of date (each, an “Increased Amount Date”) on which the proposed increaseBorrower proposes that the New Revolving Loan Commitments shall be effective, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) which shall be a date not less than five Business Days after the date on which such increase shall become effective notice is delivered to the Administrative Agent (or such shorter period as the “Increase Effective Date”), Administrative Agent may agree) and (iiiii) the identity of each Lender or other Eligible Transferee Person that is an eligible assignee under Section 11.04(b) (which, if not a Lender, an Approved Fund or an Affiliate of a Lender), shall be reasonably satisfactory to the Administrative Agent and the Issuing Banks (in each case, not to be unreasonably withheld or delayed) (each, a “New Revolving Loan Lender”) to whom the Borrower proposes any portion of such New Revolving Loan Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender or other Eligible Transferee Person approached to provide all or a portion of the Incremental any New Revolving Credit Loan Commitments or Incremental Term Loan Commitments, as applicable, may elect or decline, decline to participate in its sole discretion, to provide such Incremental . Such New Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder 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 opinion of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Increased Amount Date; provided thatthat (1) both before and after giving effect to such New Revolving Loan Commitments, subject to Section 1.7as applicable, each of the conditions set forth in Section 3.2 shall be satisfied 4.02 (or waived) prior to with the effectiveness exception of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”Section 4.02(a), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long assatisfied, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other thanincluding, for the avoidance of doubt, differences the making of the representations and warranties contained in upfront feesSection 3.04(b) hereof; (2) any New Revolving Loan Commitments and New Revolving Loans made pursuant hereto shall be on the same terms as the existing Revolving Commitments and Loans made pursuant thereto (including, for the avoidance of doubt, with respect to maturity date and pricing), as set forth in and pursuant to the Loan Documents, with such additional amendments thereto as may be necessary or appropriate in the judgment of the Administrative Agent to effect such New Revolving Loan Commitments, and (3) as a condition to the effectiveness of such New Revolving Loan Commitments, the Borrower shall deliver or cause to be delivered any customary legal opinions or other certificates reasonably requested by the Administrative Agent in connection with any such transaction. Each joinder agreement with a New Revolving Loan Lender not previously a Lender shall be subject to the consent (not to be unreasonably withheld or delayed) of the Issuing Banks.
(db) With respect to On any Incremental Increased Amount Date on which New Revolving Credit CommitmentsLoan Commitments are effected, subject to the extent any Advances or Letters of Credit satisfaction of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Dateforegoing terms and conditions, (i) each of the Lenders of such Class having a with Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) Exposure shall assign to any Lender each of such Class which is acquiring an Incremental the New Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Loan Lenders”), and such each of the New Revolving Post-Increase Loan Lenders shall purchase from each Revolving Pre-Increase Lenderof the Lenders, at the principal amount thereofthereof (together with accrued interest), such interests in the Advances and participation interests in Letters of Credit Loans outstanding on such Increase Effective Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances Loans will be held by existing Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Loan Commitments to the Revolving Commitments, (ii) each New Revolving Loan Commitment shall be deemed for all purposes a Revolving Commitment and each loan made thereunder (a “New Revolving Loan”) shall be deemed, for all purposes, a Loan, (iii) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Loan Commitment and all matters relating thereto, and (iv) each existing Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Revolving Loan Lender, and each New Revolving Loan Lender will automatically and without further act be deemed to have assumed, a portion of such ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each deemed Assignment and Assumption of participations, all of the Lenders’ (including each New Revolving Loan Lender) participations hereunder in Letters of Credit shall be held on a pro rata basis on the basis of their respective Revolving Commitment (after giving effect to any increase in the Revolving Commitment pursuant to this Section 2.23). Notwithstanding anything to the contrary herein, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this paragraph (b).
(c) The Administrative Agent shall notify the Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (i) the New Revolving Loan Commitments and the New Revolving Loan Lenders and (ii) each Lender’s Loans and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to the assignments contemplated by this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents2.23.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (CoreWeave, Inc.)
Incremental Facilities. (a%3) The Borrower may, Company may on one or more occasions after the Restatement Effective Date and prior to the Maturity Dateoccasions, by written notice to the Administrative Agent, elect to request an increase in (i) the establishment of Incremental Revolving Commitments and/or (xii) existing Term Loans the establishment of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments , provided that the aggregate amount of any Class (“Incremental Revolving Credit Commitments” and, together with all the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does Commitments established hereunder shall not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent500,000,000. Each such notice shall specify (iA) the date on which the Company proposes that the Incremental Revolving Commitments or the Incremental Term Commitments, as applicable, shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to the Administrative Agent and (B) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity of each Lender or other Eligible Transferee to whom the Borrower proposes any portion of such Incremental Revolving Commitments or Incremental Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided being requested (it being agreed that (x) any Lender or other Eligible Transferee approached to provide all or a portion of the any Incremental Revolving Credit Commitments Commitment or Incremental [[NYCORP:3493733v14:3138D: 11/19/2014--06:51 PM]] Term Loan Commitments, as applicable, Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan CommitmentCommitment and (y) any Person that the Company proposes to become an Incremental Lender, as applicableif such Person is not then a Lender, must be an Eligible Assignee and the Revolving Commitments or Terms Loans, as applicable, shall only must be increased reasonably acceptable to the extent of Incremental Revolving Credit Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and the Administrative Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, without the consent of any other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateand, in the opinion case of the Agent, to effect the provisions of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include proposed Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7Lender, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront feesIssuing Bank).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Sources: Five Year Credit Agreement (Trimble Navigation LTD /Ca/)
Incremental Facilities. (a) The Borrower may, on one On or more occasions after before the Restatement Effective Date and prior to the Final Maturity Date, the Borrower may by written notice to the Agent, Facility Agent elect to request an increase in the Facility by up to fifty million Dollars (xUS$50,000,000) existing Term Loans of any Class (the commitments thereto, the “Incremental Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”Facilities), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for all such increases under this Section 2.18, that does not exceed the Maximum Incremental Facilities Amount. Such Approved Increase shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by the Agent. Each such notice shall specify (iA) the amount of date upon which the proposed increaseBorrower proposes that the additional Commitments shall be effective, if any, to the existing Revolving Commitments or Term Loans, as applicable, (ii) which shall be a date not less than 20 Business Days after the date on which such increase shall become effective (notice is delivered to the “Increase Effective Date”), Facility Agent and (iiiB) the identity of each Lender or other Eligible Transferee or, to the extent that any Lender does not wish to provide additional Commitments, any person satisfying the criteria set out in Clause 32.2(a) to whom the Borrower proposes any portion of such Revolving additional Commitments or Incremental Term Loan Commitments(and who will become a Lender), as applicable, be allocated and the amounts of such allocations, which ; provided always that:
(a) no such notice may be submitted by the Borrower unless:
(i) the Group is in compliance with Clause 19 (Financial Covenants); and
(ii) at the time of such notice no Event of Default has occurred and is continuing;
(b) no Lender or other Eligible Transferee shall reasonably acceptable be under an obligation to participate in the Incremental Facility and nothing in this Agreement shall be interpreted as imposing an obligation on a Lender to make funds available to the Agent; provided that Borrower in respect of its pro rata share in any Lender or other Eligible Transferee approached such Incremental Facility;
(c) nothing in this Clause shall be interpreted as imposing an obligation on the Borrower to provide all or a portion request the Incremental Facilities;
(d) the terms and provisions of the Incremental Revolving Credit additional Commitments or Incremental Term Loan Commitmentsshall be, except as applicableotherwise set forth in the ancillary agreement applicable to such additional Commitments and specifying the interest rate and fees thereof, may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment, as applicable, and the Revolving Commitments or Terms Loans, as applicable, shall only be increased identical to the extent of Incremental Revolving Credit existing Commitments or Incremental Term Loan Commitments, as applicable, agreed to be provided by Lenders or Eligible Transferees. Any Eligible Transferee who agrees to provide such Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall execute a joinder agreement to which such Eligible Transferee and Loans; and
(e) the Facility Agent (whose consent thereto shall not be unreasonably withheld or delayed) are party (the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees to execute an Increase Joinder in connection with an Approved Increase, such Increase Joinder may, without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Loan Finance Documents as may be necessary or appropriate, in the opinion of the Agent, appropriate to effect the provisions provision of this Section 2.18. Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made pursuant to this Section 2.18Clause 8.8.
(b) The Incremental Loan Commitments with respect to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions set forth in Section 3.2 shall be satisfied (or waived) prior to the effectiveness of such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Term Loan Commitments; provided, further, that, with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), the condition set forth in Section 3.2(a) shall be deemed to have been satisfied so long as, as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to such Acquisition-Related Incremental Commitment.
(c) The terms and provisions of Loans made pursuant to an Approved Increase shall be identical to the terms and provisions applicable to the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date (other than, for the avoidance of doubt, differences in upfront fees).
(d) With respect to any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of the relevant Class subject to such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, on one or more occasions after the Restatement Effective Date and prior to the Maturity Date, by written notice to the Administrative Agent, elect to request an increase the establishment of one or more additional tranches of term loans or increases in the (x) existing Term Loans of any Class (the commitments thereto, the “Incremental New Term Loan Commitments”) and/or (y) existing Revolving Commitments of any Class (“Incremental Revolving Credit Commitments” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), (each increase that satisfies the terms and conditions of this Section 2.18, an “Approved Increase”), by an aggregate amount, for amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such increases New Term Loan Commitments obtained on or prior to such date), which may be incurred in Dollars, Euros or Pounds Sterling. In connection with the incurrence of any Indebtedness under this Section 2.182.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that does the New Term Loan Commitments do not exceed the Maximum Incremental Facilities Amount. Such Approved Increase , which certificate shall be in a minimum principal amount of $5,000,000 unless otherwise agreed by reasonable detail and shall provide the Agent. Each calculations and basis therefor and, subject to reclassification as set forth in Section 10.1, classify such notice shall specify Indebtedness as being incurred under clause (i) the amount of the proposed increase, if any, to the existing Revolving Commitments or Term Loans, as applicable, clause (ii) of the date on which such increase shall become effective (the “Increase Effective Date”), and (iii) the identity definition of each Maximum Incremental Facilities Amount. The Borrower may approach any Lender or any Person (other Eligible Transferee than a natural Person) to whom the Borrower proposes any provide all or a portion of such Revolving Commitments or Incremental the New Term Loan Commitments, as applicable, be allocated and the amounts of such allocations, which Lender or other Eligible Transferee shall reasonably acceptable to the Agent; provided that any Lender offered or other Eligible Transferee approached to provide all or a portion of the Incremental Revolving Credit Commitments or Incremental New Term Loan Commitments, as applicable, Commitments may elect or decline, in its sole discretion, to provide such Incremental Revolving Credit Commitment or Incremental a New Term Loan Commitment. In each case, as applicableon each applicable Increased Amount Date (subject to Section 1.12), and the Revolving such New Term Loan Commitments shall be subject to (i) no Event of Default (except in connection with an acquisition or Terms Loansinvestment (including any Permitted Acquisition or Permitted Investment), as applicable, no Event of Default under Section 11.1 or Section 11.5) shall only be increased exist on such Increased Amount Date before or after giving effect to the extent of Incremental Revolving Credit Commitments or Incremental such New Term Loan Commitments, as applicable, and subject to Section 1.12, (ii) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower and Administrative Agent, and each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) the Borrower shall make any payments required pursuant to Section 2.11 in connection with the New Term Loan Commitments, as applicable. No Lender shall have any obligation to provide any New Term Loan Commitments pursuant to this Section 2.14(a). Any New Term Loans shall, at the election of the Borrower and agreed to be provided by Lenders providing such New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for all purposes of this Agreement or Eligible Transferees. Any Eligible Transferee who agrees (b) as part of a Series of existing Term Loans for all purposes of this Agreement.
(b) [Reserved].
(c) New Term Loan Commitments of any Series shall be subject to provide such Incremental Revolving Credit Commitment or Incremental the satisfaction of the foregoing and following terms and conditions, each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall execute make a joinder agreement Loan to which the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Eligible Transferee 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 Agent New Term Loans of such Series made pursuant thereto.
(whose consent thereto d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall not be unreasonably withheld or delayedon terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) are party the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date; (ii) the “Increase Joinder”). If such proposed L▇▇▇▇▇ agrees weighted average life to execute an Increase Joinder maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the then existing Initial Term Loans as calculated without giving effect to any prepayments made in connection with an Approved Increasethe Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors, fees, and, subject to clauses (i) and (ii) above, amortization schedule applicable to any New Term Loans shall be determined by the Borrower and the Lenders thereunder; provided that, with respect to any New Term Loan, if the Effective Yield for LIBOR Loans or ABR Loans in respect of such New Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans of like currency by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then existing Initial Term Loans shall be adjusted so that the Effective Yield in respect of the then existing Initial Term Loans is equal to the Effective Yield for LIBOR Loans or ABR Loans in respect of the New Term Loans minus 0.50% (the terms of this proviso, the “MFN Protection”); and (iv) to the extent such terms and documentation are not consistent with the then existing Initial Term Loans (except to the extent permitted by clause (i), (ii) or (iii) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood that, (1) to the extent that any financial maintenance covenant is added for the benefit of any such Indebtedness, such Increase financial maintenance covenant shall also be added for the benefit of the corresponding existing Loans, and no consent shall be required by the Administrative Agent or any of the Lenders if such financial maintenance covenant is added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or (2) no consent shall be required by the Administrative Agent or any of the Lenders if any covenants or other provisions are only applicable after the Latest Term Loan Maturity Date).
(e) [Reserved].
(f) Each Joinder Agreement may, without the consent of any other LenderLenders, effect such technical and corresponding amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions provision of this Section 2.182.14.
(i) The Borrower may at any time, and from time to time, request that all or a portion of the Term Loans of any Class (an “Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.14(g). Unless otherwise specifically In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class which such request shall be offered equally to all such Lenders) (a “Term Loan Extension Request”) setting forth the proposed terms of the Extended Term Loans to be established, which shall not be materially more restrictive to the Credit Parties (taken as a whole) (as determined in good faith by the Borrower) than the terms of the Term Loans of the Existing Term Loan Class unless (x) the Lenders of the Term Loans of such applicable Existing Term Loan Class receive the benefit of such more restrictive terms or (y) any such provisions apply after the Initial Term Loan Maturity Date (a “Permitted Other Provision”); provided, however, that (x) the scheduled final maturity date shall be extended and all or any of the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later dates than the scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the scheduled amortization payments reflected in Section 2.5 or in the Joinder Agreement, as the case may be, with respect to the Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth below in paragraph (iv) of this Section 2.14(g)), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided hereinin the applicable Extension Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, all references no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Agreement and Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1(a). No Lender shall have any other obligation to agree to have any of its Term Loans of any Existing Term Loan Document Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were converted.
(ii) [Reserved].
(iii) Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans subject to such Extension Request converted into Extended Term Loans, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in such Extension Request of the amount of its Term Loans, subject to such Extension Request that it has elected to convert into Extended Term Loans. In the event that the aggregate amount of Term Loans subject to Extension Elections exceeds the amount of Extended Term Loans requested pursuant to the Extension Request, Term Loans subject to Extension Elections shall be converted to Extended Term Loans, on a pro rata basis based on the amount of Term Loans included in each such Extension Election.
(iv) Extended Term Loans shall be deemed, unless the context otherwise requires, to include Incremental Revolving Credit Commitments and Incremental Term Loan Commitments made established pursuant to an amendment (an “Extension Amendment”) to this Agreement (which, except to the extent expressly contemplated by the final sentence of this Section 2.18.
(b2.14(g)(iv) The Incremental Loan Commitments with respect and notwithstanding anything to an Approved Increase shall become effective as of such Increase Effective Date; provided that, subject to Section 1.7, each of the conditions contrary set forth in Section 3.2 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Term Loans established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of Extended Term Loans in an aggregate principal amount that is less than $10,000,000. In addition to any terms and changes required or permitted by Section 2.14(g)(i), each Extension Amendment may, but shall not be satisfied required to, impose additional requirements (not inconsistent with the provisions of this Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the contrary in this Section 2.14(g) and without limiting the generality or waivedapplicability of Section 13.1 to any Section 2.14 Additional Amendments, any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.14 Additional Amendment”) to this Agreement and the other Credit Documents; provided that such Section 2.14 Additional Amendments are within the requirements of Section 2.14(g)(i) and do not become effective prior to the effectiveness time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans provided for in any Extension Amendment) by such Incremental Revolving Credit Commitments or the funding of the relevant Incremental Lenders, Credit Parties and other parties (if any) as may be required in order for such Section 2.14 Additional Amendments to become effective in accordance with Section 13.1.
(v) Notwithstanding anything to the contrary contained in this Agreement, (A) on any date on which any Existing Term Loan Commitments; provided, further, that, Class is converted to extend the related scheduled maturity date(s) in accordance with respect to any Incremental Term Loan Commitment incurred for the primary purpose of financing a Limited Condition Acquisition clause (i) above (an “Acquisition-Related Incremental CommitmentsExtension Date”), the condition set forth in Section 3.2(a) aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to have been satisfied the aggregate principal amount of Extended Term Loans so long asconverted by such Lender on such date, as of and the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, the specified representations Extended Term Loans shall be true and correct in all material respects established as a separate Class of Term Loans (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing pursuant to together with any other Extended Term Loans so established on such Acquisition-Related Incremental Commitmentdate).
(cvi) The terms Administrative Agent and provisions of Loans made pursuant to an Approved Increase shall be identical the Lenders hereby consent to the terms and provisions applicable to consummation of the relevant Class of Loans and/or Commitments subject to such Approved Increase immediately prior to such Increase Effective Date transactions contemplated by this Section 2.14 (other thanincluding, for the avoidance of doubt, differences payment of any interest, fees, or premium in upfront fees).
(d) With respect to of any Incremental Revolving Credit Commitments, to the extent any Advances or Letters of Credit of Extended Term Loans on such terms as may be set forth in the relevant Class subject to Extension Amendment) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such Approved Increase are outstanding on the Increase Effective Date, each of the Lenders of such Class having a Revolving Commitment of such Class prior to the Increase Effective Date (the “Revolving Pre-Increase Lenders”) shall assign to extension or any Lender of such Class which is acquiring an Incremental Revolving Credit Commitment on the Increase Effective Date (the “Revolving Post-Increase Lenders”), and such Revolving Post-Increase Lenders shall purchase from each Revolving Pre-Increase Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held other transaction contemplated by Revolving Pre-Increase Lenders and Revolving Post-Increase Lenders ratably in accordance with their Pro Rata Share of such Class after giving effect to such Incremental Revolving Credit Commitments.
(e) The Incremental Loan Commitments and loans made pursuant thereto, established pursuant to this Section shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the guarantees and security interests created by the Loan Documents2.14.
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