Incremental Facilities. (a) The Borrower may, at any time or from time to time after the Closing Date, 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 additional tranches of term loans (the “Incremental Term Loans”), (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), (iii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, an “Incremental Revolving Commitment Increase”) or (iv) one or more incremental commodity cash collateral posting facilities (each, an “Incremental Posting Facility”); provided that (A) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase or Incremental Posting Facility is made or effected (and after giving effect thereto), no Default or Event of Default shall exist and the conditions in Section 7.1 shall be satisfied and (B) the Borrower shall be in compliance with the covenant set forth in Section 10.9 determined on a Pro Forma Basis as of the date of the making of such Incremental Term Loan, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may be, and as of the last day of the most recent Test Period, in each case as if such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility, as applicable, had been outstanding on the last day of such Test Period for testing compliance therewith. (b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of all Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Revolving Commitment Increases shall not exceed $2,000,000,000. (c) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Initial Term Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Initial Term Loans and the Delayed Draw Term Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent. (d) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent. (e) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans. (f) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender. (g) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, 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 Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof (each an “Incremental Facility Closing Date”) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreement. (h) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 3 contracts
Sources: Credit Agreement (Energy Future Intermediate Holding CO LLC), Credit Agreement (Energy Future Intermediate Holding CO LLC), Credit Agreement (Energy Future Holdings Corp /TX/)
Incremental Facilities. (a) The Borrower may, at any time or from time to time after the Closing Date, by written notice to the Administrative Agent (whereupon Agent, elect to request the Administrative Agent shall promptly deliver a copy to each establishment of the Lenders), request (i) one or more additional tranches of term loans or increases in Term Loans of any Class (the commitments thereto, the “New Term Loan Commitments”) by an aggregate amount not in excess of the Maximum Incremental Facilities Amount in the aggregate and not less than $10,000,000 individually (or such lesser amount as (x) may be approved by the Administrative Agent or (y) shall constitute the difference between the Maximum Incremental Facilities Amount and all such New Term LoansLoan Commitments obtained on or prior to such date). In connection with the incurrence of any New Term Loan Commitments under this Section 2.14, at the request of the Administrative Agent, the Borrower shall provide to the Administrative Agent a certificate certifying that the New Term Loan Commitments do not exceed the Maximum Incremental Facilities Amount, which certificate shall be in reasonable detail and shall provide the calculations and basis therefor and classify such Indebtedness as being incurred under clause (a) or clause (b) of the definition of “Maximum Incremental Facilities Amount”). The Borrower may approach any Lender or any Person (other than a natural Person) to provide all or a portion of the New Term Loan Commitments; provided that any Lender offered or approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment. In each case, such New Term Loan Commitments shall become effective as of the applicable Increased Amount Date; provided that (i) no Event of Default (except in connection with any Limited Condition Transaction, any other acquisition or investment (including any Permitted Acquisition or Investment) or repayments of Indebtedness that requires an irrevocable payment or redemption notice, no Event of Default under Section 11.1 or Section 11.5) shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments, as applicable, and subject to Section 1.12, (ii) the New Term Loan Commitments shall be effected pursuant to one or more additional tranches Joinder Agreements executed and delivered by the Borrower and the Administrative Agent, and each of deposit l/c loans (which shall be recorded in the “Incremental Deposit L/C Loans”Register and shall be subject to the requirements set forth in Section 5.4(e), and (iii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, an “Incremental Revolving Commitment Increase”) or (iv) one or more incremental commodity cash collateral posting facilities (each, an “Incremental Posting Facility”); provided that (A) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase or Incremental Posting Facility is made or effected (and after giving effect thereto), no Default or Event of Default shall exist and the conditions in Section 7.1 shall be satisfied and (B) the Borrower shall be make any payments required pursuant to Section 2.11 in compliance connection with the covenant set forth in Section 10.9 determined on a Pro Forma Basis as of the date of the making of such Incremental New Term Loan, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may be, and as of the last day of the most recent Test Period, in each case as if such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting FacilityLoan 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, had been outstanding on at the last day election of the Borrower and agreed to by Lenders providing such Test Period New Term Loan Commitments, be designated as (a) a separate series (a “Series”) of New Term Loans for testing compliance therewithall purposes of this Agreement or (b) as part of a Series of existing Term Loans for all purposes of this Agreement.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of all Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Revolving Commitment Increases shall not exceed $2,000,000,000[reserved].
(c) The Incremental On any Increased Amount Date on which any New Term Loans Loan Commitments of any Series are effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Series shall rank pari passu make a Loan to the Borrower (a “New Term Loan”) in right an amount equal to its New Term Loan Commitment of payment such Series, and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) each New Term Loan Lender of any Series shall not mature become a Lender hereunder with respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series shall be on terms and documentation set forth in the Joinder Agreement as determined by the Borrower; provided that (i) the applicable New Term Loan Maturity Date of each Series shall be no earlier than the Initial Term Loan Maturity Date, ; (ii) the weighted average life to maturity of all New Term Loans shall be no shorter than the weighted average life to maturity of the then existing Initial Term Loans; (iii) the pricing, interest rate margins, discounts, premiums, rate floors and fees applicable to any New Term Loans shall have interest rates and amortization schedules be determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Initial Term Loans and the Delayed Draw Term LoansLenders thereunder; provided that, except with respect to the differences set forth in that clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(d) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature apply to up to $75,000,000 of New Term Loans or Permitted Other Indebtedness as elected by the Borrower; provided, further, that, with respect to any New Term Loan incurred pursuant to clause (a)(i) of the definition of Maximum Incremental Facilities Amount that matures earlier than one year after the Deposit L/C Initial Term Loan Maturity Date, (iii) if the Effective Yield for LIBOR Loans or ABR Loans in respect of such new Term Loans exceeds the Effective Yield for LIBOR Loans or ABR Loans in respect of the then-existing Initial Term Loans by more than 0.50%, the Applicable Margin for LIBOR Loans or ABR Loans in respect of the then-existing Initial Term Loans shall have interest rates and amortization schedules determined by be adjusted so that the Borrower and Effective Yield in respect of the lenders thereof 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%; and (iv) may have to the extent such terms and conditions different from those of documentation are not consistent with the Deposit L/C Loans; provided that, then existing Initial Term Loans (except with respect to the differences set forth in clauses extent permitted by clause (i) or (ii) and (iii) above), any differences must they shall be reasonably acceptable satisfactory to the Administrative AgentAgent (it being understood that 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) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans[reserved].
(f) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(g) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Joinder Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, without the consent of any other Lenders, effect such technical and corresponding amendments to this Agreement and the other Credit Documents (including amendments in order for the New Term Loan Commitments or New Term Loans provided pursuant to such Joinder Agreement to be fungible with the existing Commitments or Loans of such Class, as applicable) as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof Section 2.14.
(each an “Incremental Facility Closing Date”i) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loansat any time, Incremental Deposit L/C Loansand from time to time, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreement.
(h) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases request that all or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase Term Loans of any Class (each an “Incremental Revolving Commitment Increase 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). 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
(A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees, premiums or applicable high-yield discount obligation (“AHYDO”) payments may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment and to the extent that any Permitted Other Provision (including a financial maintenance covenant) is added for the benefit of any such Indebtedness, no consent shall be required by the Administrative Agent or any of the Lenders if such Permitted Other Provision is also added for the benefit of any corresponding Loans remaining outstanding after the issuance or incurrence of such Indebtedness or if such Permitted Other Provision applies only after the Initial Term Loan Maturity Date. Notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full, except in accordance with the last sentence of Section 5.1. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class converted into Extended Term Loans pursuant to any 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”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed wishing to have assumed, all or a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline its Term Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each existing Class or Classes subject to such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Extension Request converted into Extended Term Loans shall notify the Administrative Agent (an “Extension Election”) on or prior to the effectiveness date specified in such Extension Request of the amount of its Term Loans of the existing Class or 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 Classes subject to Extension Elections exceeds the amount of Extended Term Loans requested pursuant to the Extension Request, Term Loans of the existing Class or Classes subject to Extension Elections shall be converted to Extended Term Loans on a pro rata basis based on the amount of Term Loans included in each such Extension Election.
(iv) Extended Term Loans shall be 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 2.14(g)(iv) and notwithstanding anything to the contrary set forth in Section 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 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 Incremental Revolving Commitment Increase 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 other Credit Documents; provided that such Section 2.14 Additional Amendments are within the requirements of Section 2.14(g)(i) and do not become effective prior to the time that such Section 2.14 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans provided for in any Extension Amendment) by such of the Lenders, Credit Parties and other parties (if any) as may be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting required in order for such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender Section 2.14 Additional Amendments to become effective in accordance with Section 2.11. 13.1.
(v) 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 “Extension Date”), the aggregate principal amount of such existing Term Loans shall be deemed reduced by an amount equal to the aggregate principal amount of Extended Term Loans so converted by such Lender on such date, and the Extended Term Loans shall be established as a separate Class of Term Loans (together with any other Extended Term Loans so established on such date).
(vi) The Administrative Agent and the Lenders hereby agree that consent to the minimum borrowingconsummation of the transactions contemplated by this Section 2.14 (including, pro rata borrowing for the avoidance of doubt, payment of any interest, fees, or premium in respect of any Extended Term Loans on such terms as may be set forth in the relevant Extension Amendment) and hereby waive the requirements of any provision of this Agreement (including, without limitation, any pro rata payment requirements contained elsewhere in or amendment section) or any other Credit Document that may otherwise prohibit or restrict any such extension or any other transaction contemplated by this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceSection 2.14.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Focus Financial Partners Inc.), Second Lien Credit Agreement (Focus Financial Partners Inc.)
Incremental Facilities. (a) The Borrower may, may at any time or from time to time after the Closing Effective Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches new term loans which may be the same Class as any outstanding Class of Term Loans (a “Term Loan Increase”) and/or one or more new Classes of term loans (collectively, with any Term Loan Increase (and including the Tranche B Term Loans), the “Incremental Term Loans”), (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), (iii) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iviii) one or more incremental commodity cash collateral posting facilities additional Classes of revolving credit commitments (eachthe “Additional/Replacement Revolving Credit Commitments”, an and together with the Incremental Term Loans and the Incremental Revolving Credit Commitment Increases, the “Incremental Posting Facility”Facilities” and the commitments in respect thereof are referred to as the “Incremental Commitments” (including therein the Tranche B Term Loan Facility and the Tranche B Term Loan Commitments, respectively)); provided that that:
(Ai) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment Agreement referred to below, except as set forth in the proviso to clause (b) below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), no Default or Event of Default shall exist exist; provided that, with respect to any Incremental Agreement the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Capital Stock of, another Person, this clause (i) may be waived or omitted by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Agreement (other than with respect to the absence of any Event of Default under Section 11.1 or Section 11.5, which requirement may not be waived by such Incremental Lenders); and
(ii) after giving effect to the incurrence of such Incremental Term Loans or borrowing under such Incremental Revolving Credit Commitment Increase or borrowing under such Additional/Replacement Revolving Credit Commitments (and after giving effect to any Specified Transaction to be consummated in connection therewith), the Borrower and the conditions in Section 7.1 shall be satisfied and (B) the Borrower shall Restricted Subsidiaries would be in compliance with the covenant set forth in Section 10.9 determined on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the date most recently ended Test Period on or prior to the incurrence of the making of any such Incremental Term LoanFacilities, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may be, and as of the last day of the most recent Test Periodcalculated on a Pro Forma Basis, in each case as if such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting FacilityAdditional/Replacement Revolving Credit Commitments, as applicable, had been outstanding (and any related transactions had occurred) on the last first day of such Test Period for testing compliance therewith.Period. LPL – Conformed A&R Credit Agreement
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit LAdditional/C Loans Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 5,000,000 (provided that such amount may be less than $50,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in minimum increments of $1,000,000 in excess thereof), and following the next sentence). Notwithstanding anything to the contrary hereinEffective Date, the aggregate amount of all the Incremental Term Loans, Incremental Deposit L/C Loans Revolving Credit Commitment Increases and the Additional/Replacement Revolving Credit Commitments shall not exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of the proceeds thereof, of the sum of (A) the greater of $500,000,000 and an amount equal to 100% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered (minus, the aggregate principal amount of all Permitted Additional Debt incurred under clause (A) of the proviso to Section 10.1(v)(ii) at any time following the Effective Date), plus (B) an aggregate additional amount of Indebtedness, such that, after giving Pro Forma Effect to such incurrence or issuance (and after giving effect to any Specified Transaction to be consummated in connection therewith and assuming that all Incremental Revolving Commitment Increases Credit Commitments then outstanding were fully drawn (except to the extent that such Incremental Revolving Credit Commitments refinanced or replaced all or any portion of the Revolving Credit Commitments outstanding on the Effective Date))) the Borrower would be in compliance with a Consolidated Secured Debt to Consolidated EBITDA Ratio as of the Test Period most recently ended on or prior to the incurrence of any such Incremental Facility, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Test Period, that is no greater than 4.0:1.0 (the amounts under clause (A), the “Free and Clear Incremental Amount” and the amounts under clause (B), the “Incurrence-Based Incremental Amount” and, together with the Free and Clear Incremental Amount, the “Incremental Limit”); provided that (i) Incremental Term Loans may be incurred without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, 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 to prepay Term Loans in accordance with the procedures set forth in Section 5.2(a)(i) and subject to the payment of premiums set forth in Section 5.1(b), if applicable, (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Limit, without regard to the requirement set forth in the proviso to Section 2.14(a) that the Borrower and the Restricted Subsidiaries be in compliance on a Pro Forma Basis with the requirements of Sections 10.9 and 10.10 as of the most recently ended Test Period, and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided and (iii) the Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof in accordance with Section 1.2(m) (and, absent such election, shall be deemed to have used the Incurrence-Based Incremental Amount). Without limiting the foregoing, all or any portion of the Free and Clear Incremental Amount incurred concurrently with all or any portion of the Incurrence-Based Incremental Amount shall not exceed $2,000,000,000.count as Indebtedness for the purposes of calculating the applicable ratio pursuant to the Incurrence-Based Incremental Amount in accordance with Section 1.2(m). LPL – Conformed A&R Credit Agreement
(c) (i) The Incremental Term Loans (iI) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial InitialTranche B Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (iiII) shall not mature earlier than the Initial InitialTranche B Term Loan Maturity Date, (iiiIII) shall not have a shorter Weighted Average Life to Maturity than the InitialTranche B Term Loan Facility, (IV) shall have an amortization schedule (subject to clause (III) above), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and amortization schedules prepayment premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans; provided, however, that if the Effective Yield in respect of any Incremental Term Loans that rank pari passu in right of payment and security with the InitialTranche B Term Loans as of the date of funding thereof and established on or prior to the InitialTranche B Term Loan Maturity Date exceeds the Effective Yield in respect of the InitialTranche B Term Loans by more than 0.50%, then the Applicable Margin in respect of the Initial Term Loans shall be adjusted so that the Effective Yield in respect of the InitialTranche B Term Loans is equal to the Effective Yield of the Incremental Term Loans minus 0.50%; provided, further, to the extent that any change in the Effective Yield of the InitialTranche B Term Loans is necessitated by this clause (ivc)(i) on the basis of an effective interest rate floor in respect of the Incremental Term Loans, the increased Effective Yield in the InitialTranche B Term Loans shall (unless otherwise agreed in writing by the Borrower) have such increase in the Effective Yield effected solely by increases in the interest rate floor(s) applicable to the InitialTranche B Term Loans and (V) may otherwise have terms and conditions different from those of the Initial Term Loans and the Delayed Draw InitialTranche B Term Loans; provided that, that (except with respect to the differences set forth in clauses matters contemplated by subclauses (iiII), (III) and (iiiIV) in above, ) any differences must shall be reasonably acceptable satisfactory to the Administrative Agent.
(d) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(e) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(f) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(g) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, 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 Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof (each an “Incremental Facility Closing Date”) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreement.
(h) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, at and any time one or more Lenders (including New Lenders) may from time to time after agree that such Lenders shall make, obtain or increase the Closing Dateamount of their Incremental Term Loans (each additional Incremental Term Loan, 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 additional tranches of term loans (the an “Incremental Term LoansFacility”), (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), (iii) one or more increases in the amount of the Revolving Credit Commitments (each any such increase, an “Incremental Revolving Commitment IncreaseFacility”) or (iv) one or more incremental commodity cash collateral posting facilities (each; together with any Incremental Term Facilities, an the “Incremental Posting FacilityFacilities”), as applicable, by executing and delivering to the Administrative Agent an Increased Facility Activation Notice specifying (i) the amount of such increase and the Facility or Facilities involved, (ii) the applicable Increased Facility Closing Date (which may be selected by the Borrower after the Closing Date) and (iii) in the case of Incremental Term Loans, (x) the applicable Incremental Term Maturity Date, (y) the amortization schedule for such Incremental Term Facility and (z) the Applicable Margin for such Incremental Term Facility; provided provided, that (A) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default exists or shall exist and at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase immediately before or Incremental Posting Facility is made or effected (and after giving effect thereto), no Default or Event of Default shall exist and the conditions in Section 7.1 shall be satisfied and to such Incremental Facility; (B) on a pro forma basis after giving effect to such Incremental Facility as though fully borrowed and any other transactions in connection therewith, the Borrower shall be in compliance with the covenant set forth Financial Covenants (whether or not the Financial Covenants are then in Section 10.9 determined on a Pro Forma Basis as of the date of the making of such Incremental Term Loaneffect), Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may be, and recomputed as of the last day of the most recent Test Periodrecently ended fiscal quarter of the Borrower for which financial statements are available; (C) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all material respects immediately prior to, and after giving effect to, such Incremental Facility, except for representations and warranties made as of a specific earlier date that shall be true and correct in each case all material respects as if of such earlier date; (D) the maturity date and weighted average life to maturity of any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility, as applicable, had been outstanding on the last day of such Test Period for testing compliance therewith.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase Facility shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of all Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Revolving Commitment Increases shall not exceed $2,000,000,000.
(c) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature no earlier than or shorter than the Initial maturity date and weighted average life to maturity, respectively, of the Term Loan Maturity Date, Facility; (iiiE) shall have the interest rates and amortization schedules schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereof and Lenders thereunder; provided that the total yield (iv) may have terms and conditions different from those of calculated for both the Initial Incremental Term Loans and the Delayed Draw Term Loans; provided that, except including the upfront fees, any interest rate floors and any OID, but excluding any arrangement, underwriting or similar fee paid by the Borrower)) in respect of any Incremental Term Loans will not be more than 0.50% higher than the corresponding total yield for the existing Term Loans (it being understood that any such increase may take the form of OID with OID being equated to the interest rates in a manner determined by the Administrative Agent based on an assumed four-year life to maturity), unless the interest rate margins with respect to the differences set forth existing Term Loans are increased by an amount equal to the difference between the total yield with respect to the Incremental Term Loans and the corresponding total yield on the existing Term Facility minus 0.50% and (F) the Incremental Revolving Facility shall be on terms and pursuant to documentation applicable to the Revolving Facility (including the maturity date in clauses (iirespect thereof) and any Incremental Term Facility shall be on terms and pursuant to documentation to be determined, provided that, to the extent such terms and documentation are not consistent with, in the case of the Incremental Term Loans, the Term Facility (iiiexcept to the extent permitted by clause (D) or (E) above), any differences must they shall be reasonably acceptable satisfactory to the Administrative Agent. Notwithstanding the foregoing, (i) without the consent of the Required Lenders, the aggregate amount of incremental Revolving Commitments and borrowings of Incremental Term Loans shall not exceed (x) $50,000,000 plus (y) an additional amount so long as the Total Leverage Ratio (as determined on a pro forma basis giving effect to such Incremental Facility as though fully borrowed and any other transactions in connection therewith) is not in excess of 4.00:1.00 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $5,000,000 and (y) no more than four Increased Facility Closing Dates may be selected by the Borrower after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld, conditioned or delayed and provided that, with respect to an Incremental Term Facility, no consent of the Administrative Agent shall be needed if such New Lender is an Affiliate of a Lender or an Approved Fund), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.22(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit C, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the Revolving Facility, the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Borrower and the relevant Lender.
(d) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those proceeds of the Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must Incremental Facilities shall be reasonably acceptable to the Administrative Agentused for purposes permitted by Section 5.10.
(e) Each Incremental Posting Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall rank pari passu in right of payment be amended to the extent (but only to the extent) necessary to reflect the existence and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(f) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans evidenced thereby. Any such deemed amendment may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, effected in writing by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented with the Borrower’s consent (not to be unreasonably withheld) and furnished to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(g) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, 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 Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof (each an “Incremental Facility Closing Date”) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreementhereto.
(h) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, may at any time or from time to time after the Closing ClosingAmendment No. 3 Effective Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (ix) one or more additional tranches of term loans (each such tranche, an “Incremental Term Loan” and collectively, the “Incremental Term Loans”), ) or (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), (iiiy) one or more increases in the amount of the Revolving Credit Commitments (each such increase, an a “Incremental Revolving Commitment Increase”) or (iv) one or more incremental commodity cash collateral posting facilities (each” and, an together with the “Incremental Posting FacilityTerm Loans, the “Incremental Loans”); provided that that:
(Ai) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such below (an “Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase or Incremental Posting Facility is made or effected (and after giving effect theretoLoan Closing Date”), no Default or Event of Default shall exist after giving effect to the extension of credit contemplated on the Incremental Loan Closing Date;
(ii) each of the representations and warranties made by any Loan Party in or pursuant to the conditions in Section 7.1 Loan Documents shall be satisfied true and correct in all material respects on and as of the Incremental Loan Closing Date, as if made on and as of such date (Bexcept 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
(iii) the Borrower shall be in compliance with the covenant covenants set forth in Section 10.9 7.1 determined on a Pro Forma Basis pro forma basis as of the date of most recently ended Reference Period as if (x) the making of such Incremental Term Loan, Incremental Deposit L/C Loans or (y) the additional Revolving Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may be, and as of the last day of the most recent Test Period, in each case as if such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility, as applicable, proposed to be borrowed on such Incremental Loan Closing Date had been outstanding and fully borrowed on the last first day of such Test Reference Period of the Borrower for testing compliance therewith.
therewith (b) bearing interest throughout the Reference Period at the rate applicable on the relevant Incremental Loan Closing Date). Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans Loan shall be in an aggregate principal amount that is not less than $50,000,000 and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of all any Incremental Term Loans, when taken together with all other Incremental Deposit L/C Loans and the Incremental Revolving Commitment Increases to date, shall not exceed $2,000,000,000300,000,000.
(cb) The Incremental Loans shall rank pari passu in right of payment with the Revolving Loans. The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Initial Term Loan Maturity Date, Revolving Termination Date and (iiiii) shall have otherwise be on terms, including with respect to interest rates rate and amortization schedules amortization, and pursuant to documentation, to be determined by the Borrower Borrower, the Administrative Agent and the lenders thereof and (iv) may have terms and conditions different from those of the Initial Term Loans and the Delayed Draw Term Loans; provided that, except thereunder. Other than with respect to the differences set forth in clauses (ii) Applicable Margin or Undrawn Fee Rate, the terms of the Revolving Commitments and (iii) above, any differences must Revolving Loans made pursuant to a Revolving Commitment Increase shall be reasonably acceptable identical to the Administrative Agent.
(d) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) existing Revolving Commitments and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(e) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(fc) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities) or by any other bank or other financial institution as determined by the Borrower (any such other bank or other financial institution being called an “Additional Lender”); provided that (i) no Lender shall have any obligation to provide any Incremental Loan or commitment in respect thereof unless it agrees to do so in its sole discretion and (ii) the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(gd) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Loans and Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental a Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit CommitmentLender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, and the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agentsAgent. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Each Additional Lender executing an Incremental Amendment shall be subject become a Lender for all purposes and to the satisfaction on same extent as if originally a party hereto and shall be bound by and entitled to the date hereof (each an “Incremental Facility Closing Date”) benefits of the conditions in Section 7.1 and such other conditions as the parties thereto shall agreethis Agreement. The Borrower may will use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Loans and Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreement.
(he) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, (i) each Revolving Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an a “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Credit Commitment. If, Commitment and (ii) if on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.113.10. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, may at any time or from time to time after the Closing Date, by written notice delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) the addition of one or more additional tranches of term loans (the “Incremental Term Loans”)) to the Credit Facilities, (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), (iii) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, an “Incremental Revolving Credit Commitment Increase”) or (iviii) the addition of one or more incremental commodity cash collateral posting facilities Classes of revolving credit commitments (eachthe “Additional/Replacement Revolving Credit Commitments”, an and together with the Incremental Term Loans and the Incremental Revolving Credit Commitment Increases, the “Incremental Posting FacilityFacilities”); and the commitments in respect thereof are referred to as the “Incremental Commitments”) to the Credit Facilities; provided that (A) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility Additional/Replacement Revolving Credit Commitment is made or effected (and after giving effect thereto), ) no Default or Event of Default shall exist and the conditions (or, in Section 7.1 shall be satisfied and (B) the Borrower shall be in compliance with the covenant set forth in Section 10.9 determined on a Pro Forma Basis as of the date of the making of such Incremental Term Loan, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may beof any Incremental Facility established to finance an acquisition permitted hereunder or bona fide Investment, no Event of Default under Section 11.1 or 11.5) has occurred and as of the last day of the most recent Test Period, in each case as if such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase is continuing or Incremental Posting Facility, as applicable, had been outstanding on the last day of such Test Period for testing compliance therewith.would exist;
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit LAdditional/C Loans Replacement Revolving Credit Commitments and each Incremental Revolving Credit Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 5,000,000 (provided that such amount may be less than $50,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth below) (and in the next sentenceminimum increments of $1,000,000 in excess thereof). Notwithstanding anything to the contrary herein, and the aggregate amount of all the Incremental Term Loans, Incremental Deposit L/C Loans Revolving Credit Commitment Increases and the Incremental Additional/Replacement Revolving Commitment Increases Credit Commitments shall not exceed $2,000,000,000exceed, at the time of incurrence thereof and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the Incremental Amount at such time; provided that (i) Incremental Term Loans may be incurred without regard to the Incremental 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 to prepay Term Loans in accordance with the procedures set forth in Section 5.2(a)(i), if applicable, and (ii) Additional/Replacement Revolving Credit Commitments may be provided without regard to the Incremental Amount and without regard to whether an Event of Default has occurred and is continuing, to the extent that the existing Revolving Credit Commitments shall be permanently reduced in accordance with Section 5.2(e)(ii) by an amount equal to the aggregate amount of Additional/Replacement Revolving Credit Commitments so provided.
(ci) The Incremental Term Loans (iA) shall rank pari passu in right of payment and of security with the Initial Term Loans, (B) shall be secured only by the Collateral, shall be borrowed only by the Borrower and shall be guaranteed only by the Guarantors, (C) shall not mature earlier than the Initial Term Loan Maturity Date, (D) shall not have a shorter Weighted Average Life to Maturity than the then remaining Weighted Average Life to Maturity of the Initial Term Loan Facility, (E) shall have an amortization schedule (subject to clause (D) above), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts and original issue discounts (subject to clause (d) below) and prepayment premiums for the Incremental Term Loans as determined by the Borrower and the lenders of the Incremental Term Loans and (F) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that (except with respect to matters contemplated by subclauses (C), (D) and (E) above) any differences shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan Facility, no consent shall be required from the Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant is also added for the benefit of all Credit Facilities).
(ii) The Incremental Revolving Credit Commitment Increase shall be treated and have terms that are the same as the Revolving Credit Commitments (including with respect to maturity date thereof) and shall be considered to be part of the Revolving Credit Facility (it being understood that, if required to consummate an Incremental Revolving Credit Commitment Increase, the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Credit Facility may be increased and additional upfront or similar fees may be payable to the Incremental Revolving Credit Commitment Increase Lenders).
(iii) The Additional/Replacement Revolving Credit Commitments (A) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, (B) shall be secured only by the Initial Term LoansCollateral, shall be borrowed only by the Delayed Draw Term Loans, Borrower and shall be guaranteed only by the Posting Advances and the Deposit L/C LoansGuarantors, (iiC) shall not mature earlier than the Initial Term Loan Revolving Credit Maturity Date and shall require no mandatory commitment reduction prior to the Revolving Credit Maturity Date, (iiiD) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts and amortization schedules original issue discounts (subject to clause (d) below) and prepayment premiums as determined by the Borrower and the lenders thereof of such commitments, (E) shall contain borrowing, repayment and termination of commitment procedures as determined by the Borrower and the lenders of such commitments, (F) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the lenders of such commitments and the applicable letter of credit issuers and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Incremental Agreement) to the terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and (ivG) may otherwise have terms and conditions different from those of the Initial Term Loans and the Delayed Draw Term LoansRevolving Credit Facility; provided that, that (except with respect to the differences set forth in matters contemplated by clauses (iiC), (D), (E) and (iiiF) above, ) any differences must shall be reasonably acceptable satisfactory to the Administrative AgentAgent (it being understood that, to the extent that any financial maintenance covenant is added for the benefit of any Additional/Replacement Revolving Credit Commitments, no consent shall be required from the Administrative Agent or any other Lenders to the extent that such financial maintenance covenant is also added for the benefit of the Revolving Credit Facility).
(d) The Notwithstanding Sections 2.14(c)(i) and 2.14(c)(iii), in the event that the interest rate margins for any Incremental Deposit LTerm Loan Facility or Additional/C Loans Replacement Revolving Credit Commitments are higher than the interest rate margins for the Initial Term Loan Facility (iin the case of an Incremental Term Loan Facility) shall rank pari passu in right of payment and of security with or the Revolving Credit LoansFacility (in the case of an Additional/Replacement Revolving Credit Commitment) by more than (in either case) 50 basis points, then the Applicable Margin for the Initial Term Loan Facility or the Revolving Credit Facility, as the case may be, shall be increased to the extent necessary so that the applicable interest rate margins equal the interest rate margins for such Incremental Term Loan Facility or such Additional/Replacement Revolving Credit Commitments, as the case may be, minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the Incremental Term Loan Facility and the Initial Term Loan Facility or the Additional/Replacement Revolving Credit Commitments and the Revolving Credit Facility (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loan Facility or any Incremental Term Loan Facility or the Revolving Credit Facility or any Additional/Replacement Revolving Credit Commitment in the initial primary syndication thereof shall be included as additional interest (with OID or upfront fees being equated to interest based on assumed four-year life to maturity and assuming that the Additional/Replacement Revolving Credit Commitments and the Revolving Credit Facility were fully drawn), (y) customary arrangement or commitment fees payable to any of the Joint Lead Arrangers and/or the Joint Bookrunners (or their respective Affiliates) in connection with the Initial Term Loan Facility or the Revolving Credit Facility or to one or more arrangers or bookrunners (or their Affiliates) of any Incremental Term Loan Facility or any Additional/Replacement Revolving Credit Commitment shall be excluded and (z) (1) with respect to the Initial Term Loan Facility, to the extent that the Eurodollar Rate for a three month interest period on the closing date of any such Incremental Term Loan Facility is less than 1.0% per annum, the amount of such difference shall be deemed added to the Applicable Margin for the Initial Term Loans, solely for the Delayed Draw purpose of determining whether an increase in the Applicable Margin for the Initial Term LoansLoans shall be required, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv2) may have terms and conditions different from those of the Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) aboveIncremental Term Loan Facility or Additional/Replacement Revolving Credit Commitments, any differences must be reasonably acceptable to the Administrative Agentextent that the Eurodollar Rate for a three month interest period on the closing date of any such Incremental Term Loan Facility or Additional/Replacement Revolving Credit Commitment is less than the interest rate floor, if any, applicable to any such Incremental Term Loan Facility or Additional/Replacement Revolving Credit Commitment, the amount of such difference shall be deemed added to the interest rate margins for the Loans under the Incremental Term Loan Facility or Additional/Replacement Revolving Credit Commitment solely for the purpose of determining whether an increase in the Applicable Margin for the Initial Term Loans or Revolving Loans shall be required.
(e) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(f) 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 Deposit L/C Loans, Incremental Revolving Credit Commitment Increases or Incremental Posting FacilitiesAdditional/Replacement Revolving Credit Commitments. Incremental Term Loans and Incremental Deposit L/C Loans may be made, and Incremental Revolving Credit Commitment Increases and Incremental Posting Facilities Additional/Replacement Revolving Credit Commitments may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Credit Commitment Increase and (iii) the Borrower shall no existing Lender with a Revolving Credit Commitment will have no an obligation to offer provide a portion of any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit LAdditional/C Loans, Incremental Replacement Revolving Credit Increases or Incremental Posting FacilitiesCommitment) or by any other bank bank, financial institution, other institutional lender or other financial institution investor (any such other bank bank, financial institution or other financial institution investor being called an “Additional Lender”); provided that (i) the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Credit Commitment Increases or such Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender; provided further that, solely with respect to any Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments, the Swingline Lender and each Letter of Credit Issuer shall have consented (not to be unreasonably withheld) to such Additional Lender’s providing such Incremental Revolving Credit Commitment Increases or Additional/Replacement Revolving Credit Commitments if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(gf) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increases and Incremental Posting Facilities Additional/Replacement Revolving Credit Commitments shall become Commitments (or in the case of an Incremental Revolving Credit Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental AmendmentAgreement”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, and the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agentsAgent. The Incremental Amendment Agreement may, subject to Section 2.14(c), (d) or (e) as the case may be, 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 Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment Agreement shall be subject to the satisfaction on the date hereof thereof (each each, an “Incremental Facility Closing Date”) ), and the occurrence of any Credit Events pursuant to such Incremental Agreement, shall be subject to the satisfaction of the conditions in applicable requirements of this Section 7.1 and such other conditions conditions, if any, as the parties thereto shall agree. The Borrower may will use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increases and Incremental Posting Facilities Additional/Replacement Revolving Credit Commitments for any purpose not prohibited by this Agreement; provided that the proceeds of any Incremental Term Loans incurred, and any Additional/Replacement Revolving Credit Commitments provided, in either case as described in the proviso to Section 2.14(b), shall be used in accordance with the terms thereof.
(hi) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increases or Incremental Posting Facilities, Additional/Replacement Revolving Credit Commitments unless it so agrees in its sole discretion and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increases or Incremental Posting Facilities. Additional/Replacement Revolving Credit Commitments.
(ii) Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment of such Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Credit Commitment Increase (each each, an “Incremental Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (iA) participations hereunder in Revolving Letters of Credit and (iiB) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.Commit
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, at and any time one or more Lenders (including New Lenders) may from time to time after agree that such Lenders shall make, obtain or increase the Closing Date, amount of their Incremental Term Loans by notice executing and delivering to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request an Increased Facility Activation Notice specifying (i) one or more additional tranches the amount of term loans (the “Incremental Term Loans”)such increase, (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”)applicable Increased Facility Closing Date, and (iii) one or more increases the interest rate for such Incremental Term Loans. Notwithstanding the foregoing:
(i) (x) without the consent of the Administrative Agent each increase effected pursuant to this paragraph shall be in the a minimum amount of at least $10,000,000 and (y) the Revolving Credit Commitments aggregate principal amount of Incremental Term Loans shall not exceed $50,000,000;
(each ii) no more than three (3) Increased Facility Closing Dates may be selected by the Borrower after the Effective Date;
(iii) such increaseIncremental Term Loans shall have the same guarantees as those provided under the Security Instruments, an “Incremental Revolving Commitment Increase”) or and be secured on a pari passu basis with the Liens on the Collateral;
(iv) one or more incremental commodity cash collateral posting facilities (each, an “Incremental Posting Facility”); provided that (A) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and (including, without limitation, compliance with all financial covenants contained in Section 9.01) exists at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase of or Incremental Posting Facility is made or effected (and after giving effect thereto), no Default or Event of Default shall exist and would result from the conditions in Section 7.1 shall be satisfied and (B) the Borrower shall be in compliance with the covenant set forth in Section 10.9 determined on a Pro Forma Basis as of the date of the making incurrence of such Incremental Term Loan, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or Loans after giving pro forma effect thereto;
(v) the entering into such Incremental Posting Facilityratio of Total PDP PV-9 to Total Debt, as of any Increased Facility Closing Date, shall not be less than 1.00 to 1.00 after giving pro forma effect to the case may be, and as incurrence of the last day of the most recent Test Period, in each case as if such Incremental Term Loans;
(vi) no Increased Facility Closing Date shall occur after the date that is 18 months after the Effective Date;
(vii) the Administrative Agent and the Lenders, including any New Lender, shall have received all fees and other amounts due and payable on or prior to the Increased Facility Closing Date of such Incremental Deposit L/C Term Loans and reimbursement or payment of all reasonable and documented out-of-pocket expenses required to be reimbursed or paid by the Borrower; and
(viii) no Lender shall have any obligation to participate in any Incremental Term Loans described in this Section 2.09 unless it agrees to do so in its sole discretion; provided, however, MSECI agrees that it or a designated Affiliate thereof will participate in the Incremental Term Loans (on a pro rata basis in accordance with its Term Loans outstanding immediately prior to the incurrence of any Incremental Term Loans, ) so long as the Incremental Revolving Credit Commitment Increase or Incremental Posting Facility, as applicable, had been outstanding Term Loans the subject of any such Increased Facility Activation Notice are on the last day of such Test Period for testing compliance therewithsame terms, conditions and economics as the Term Loans made by the Lenders on the Effective Date.
(b) Each tranche Any additional bank, financial institution or other institutional lender which, with the consent of Incremental Term Loansthe Borrower and the Administrative Agent (which consent shall not be unreasonably withheld, each tranche of Incremental Deposit L/C Loans conditioned or delayed), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.09(a), such bank, financial institution or other institutional lender (a “New Lender”) shall become a Lender for all purposes and each Incremental Revolving Commitment Increase to the same extent as if originally a party hereto and shall be in an aggregate principal amount that is not less than $50,000,000 bound by and entitled to the benefits of this Agreement.
(provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). c) Notwithstanding anything to the contrary hereinin this Agreement, each of the aggregate amount parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of all Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Revolving Commitment Increases shall not exceed $2,000,000,000.
(c) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Initial Term Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Initial Term Loans and the Delayed Draw Term Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(d) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(e) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(f) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilitiesevidenced thereby. Incremental Term Loans and Incremental Deposit L/C Loans Any such deemed amendment may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, effected in writing by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented with the Borrower’s consent (not to be unreasonably withheld, conditioned or delayed) and furnished to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(g) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, 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 Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof (each an “Incremental Facility Closing Date”) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreementhereto.
(h) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request (i) an increase to an existing tranche, and/or the addition of one or more additional tranches tranches, of first-lien term loans (the “Incremental Term Loans”), ) or (ii) one the addition of a revolving credit facility (or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), (iii) one or more increases an increase in the amount of the Revolving Credit Commitments (each such increasecommitments thereof, an “Incremental Revolving Commitment Increase”if applicable) or (iv) one or more incremental commodity cash collateral posting facilities (each, an “Incremental Posting FacilityRevolving Commitment”); provided that (A) both at unless the time proceeds of any such request and after giving effect Incremental Term Loans or Incremental Revolving Commitments will be used to the effectiveness of any Incremental Amendment referred to belowfinance a Limited Condition Acquisition, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Loan or Incremental Revolving Commitment Increase or Incremental Posting Facility is made or effected (and after giving effect thereto), no Default or Specified Event of Default shall exist and the conditions in Section 7.1 shall be satisfied and (B) the Borrower shall be in compliance with the covenant set forth in Section 10.9 determined on a Pro Forma Basis as of the date of the making of such Incremental Term Loan, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may be, and as of the last day of the most recent Test Period, in each case as if such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility, as applicable, had been outstanding on the last day of such Test Period for testing compliance therewithexist.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 10,000,000 (provided that such amount may be less than $50,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceavailability). Notwithstanding anything to The incurrence of Incremental Term Loans or Incremental Revolving Commitments shall be permitted so long as, at the contrary hereintime of incurrence thereof, the aggregate amount Consolidated Senior Secured Leverage Ratio of all Incremental Term Loans, Incremental Deposit L/C Loans the Borrower does not exceed 3.25:1.00 and the Incremental Revolving Commitment Increases shall Consolidated Leverage Ratio of the Borrower does not exceed $2,000,000,0005.00:1.00, in each case calculated on a pro forma basis for a period of four consecutive fiscal quarters ending on the last day of the fiscal quarter for which financial statements are available immediately preceding the fiscal quarter in which such Indebtedness is incurred (assuming for purposes of any such calculation that any commitments in respect of any of the foregoing are fully drawn).
(c) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loansother Loans outstanding hereunder, (ii) shall not mature earlier than the Initial Tranche B Term Loan Maturity DateDate and shall not have a Weighted Average Life to Maturity that is shorter than the remaining Weighted Average Life to Maturity of the Tranche B Term Loans, (iii) shall have interest rates rates, rate floors, upfront fees, original issue discounts, premiums and amortization schedules (subject to clause (ii) above) and, subject to Section 4.02 and 4.09, optional and mandatory prepayments (including call protection and prepayment premiums) determined by the Borrower and the lenders thereof and (iv) may have other terms and conditions (subject to clauses (i) and (ii) above) different from those of the Initial other Term Loans and outstanding hereunder which are market terms (as determined in good faith by the Delayed Draw Term Loans; provided that, except with respect to the differences set forth in clauses (iiBorrower) and (iii) above, any differences must as may be reasonably acceptable to the Administrative Agent.
(d) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by agreed between the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(e) Each providing such Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(fd) Each notice from the Borrower pursuant to this Section 2.14 12.01 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Loans or Incremental Revolving Commitment Increases or Incremental Posting FacilitiesCommitments. Incremental Term Loans and Incremental Deposit L/C Loans may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities Commitments may be provided, by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) and no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase Commitments and (iii) the Borrower shall have no obligation to offer any such existing Lender the opportunity to provide participate in the provision of any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases loans or Incremental Posting Facilitiescommitments) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) 11.06 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(ge) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Loans and Incremental Revolving Commitment Increases and Incremental Posting Facilities Commitments shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, and the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agentsAgent. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Loan Documents as may be necessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof thereof (each each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 7.1 and such other conditions as the parties thereto shall agreeIncremental Amendment. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Loans and the Incremental Revolving Commitment Increases and Incremental Posting Facilities Commitments for any purpose not prohibited by this Agreement.
(hf) No Lender shall be obligated to provide In the event that the All-in Yield for any Incremental Term Loans is more than 0.50% per annum greater than the All-in Yield for the Tranche B Term Loans, then the Applicable Margin for the Tranche B Term Loans shall be increased to the extent necessary so that the All-in Yield for such Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower Term Loans shall not be obligated to offer any existing Lender more than 0.50% per annum greater than the opportunity to provide All-in Yield for the Tranche B Term Loans. For purposes of this clause (f), if any Incremental Term Loan includes an interest rate “floor” greater than the Eurodollar or Base Rate “floors” applicable to the Tranche B Term Loans, Incremental Deposit L/C Loanssuch differential between the floors shall be equated to the applicable All-in Yield for purposes of determining whether an increase to the Applicable Margin for the Tranche B Term Loans shall be required, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each but only to the extent an increase in the Revolving Credit Commitments pursuant Eurodollar or Base Rate “floors” for the Tranche B Term Loans would cause an increase in the interest rate then in effect for the Tranche B Term Loans, and in such case, the Eurodollar and Base Rate “floors” (but not the Applicable Margin) applicable to this Section, each Lender with a Revolving Credit Commitment immediately prior the Tranche B Term Loans shall be increased 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 Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect extent of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, differential between the percentage of the aggregate outstanding interest rate floors (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior but only to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from extent necessary to achieve the proceeds of additional Revolving Credit Loans made hereunder 0.50% differential described above).
(reflecting such increase g) This Section 12.01 shall supersede any provisions in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply 4.09 or 11.01 to the transactions effected pursuant to the immediately preceding sentencecontrary.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, at and any time one or more Lenders (including New Lenders) may from time to time after agree that such Lenders shall make, obtain or increase the Closing Dateamount of their Incremental Term Loans or Revolving Commitments, as applicable, by notice executing and delivering to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request Agents an Increased Facility Activation Notice specifying (i) one the amount of such increase and the Facility or more additional tranches of term loans (the “Incremental Term Loans”)Facilities involved, (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), applicable Increased Facility Closing Date and (iii) one or more increases in the amount case of Incremental Term Loans, (x) the Revolving Credit Commitments applicable Incremental Term Maturity Date, (each y) the amortization schedule for such increaseIncremental Term Loans and (z) the Applicable Margin for such Incremental Term Loans; provided, an “Incremental Revolving Commitment Increase”) or (iv) one or more incremental commodity cash collateral posting facilities (each, an “Incremental Posting Facility”); provided that (A) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default exists or shall exist and at immediately before or after giving effect to the time that any incurrence of such Incremental Term LoanLoans or incremental Revolving Commitments, (B) on a pro forma basis after giving effect to the incurrence of such Incremental Deposit L/C Loan, Incremental Term Loans or incremental Revolving Commitment Increase or Incremental Posting Facility is made or effected Commitments (assuming the full drawing thereunder and after giving effect theretoto other permitted pro forma adjustment events and any permanent repayment of Indebtedness after the beginning of the relevant determination period but prior to or simultaneous with such borrowing), no Default or Event of Default shall exist and the conditions in Section 7.1 shall be satisfied and (B) the Borrower shall be in compliance with the covenant financial covenants set forth in Section 10.9 determined on a Pro Forma Basis as of the date of the making of such Incremental Term Loan7.1, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may be, and recomputed as of the last day of the most recent Test Periodrecently ended fiscal quarter of the Borrower for which financial statements shall have been (or shall have been required to be) delivered pursuant to Section 6.1, (C) each of the representations and warranties made by any Loan Party in each case as or pursuant to the Loan Documents shall be true and correct in all material respects (provided that if any representation or warranty is by its terms qualified by materiality, such representation shall be true and correct in all respects) immediately prior to, and immediately after giving effect to, the incurrence of such Incremental Term LoansLoans or incremental Revolving Commitments, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility, as applicable, had been outstanding on (D) the last day maturity date of any such Test Period for testing compliance therewith.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of all Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Revolving Commitment Increases shall not exceed $2,000,000,000.
(c) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature be no earlier than the Initial Term Loan Maturity Revolving Termination Date, (iiiE) shall have the interest rates and amortization schedules schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereof Lenders thereunder and (ivF) any Incremental Term Facility shall be on terms and pursuant to documentation to be determined (which may have include provisions relating to mandatory prepayments and prepayment premium), provided that such terms and conditions different from those shall be reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, (i) without the consent of the Initial Required Lenders, the aggregate amount of incremental Revolving Commitments and borrowings of Incremental Term Loans shall not exceed $250,000,000 and (ii) without the consent of the Administrative Agent, (x) each increase effected pursuant to this paragraph shall be in a minimum amount of at least $25,000,000 and (y) no more than five Increased Facility Closing Dates may be selected by the Borrower after the Closing Date. No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(b) Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Delayed Draw Term Loans; provided thatAdministrative Agent (which consent shall not be unreasonably withheld), except elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.18(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit G, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date with respect to the differences set forth Revolving Facility, the Borrower shall borrow Revolving Loans under the relevant increased Revolving Commitments from each Lender participating in clauses the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would then have been outstanding from such Lender if (i) each such Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and (ii) and (iii) above, the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Rate applicable to any differences must be reasonably acceptable Eurodollar Loan borrowed pursuant to the Administrative Agentpreceding sentence shall equal the Eurodollar Rate then applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar Tranche (or, until the expiration of the then-current Interest Period, such other rate as shall be agreed upon between the Borrower and the relevant Lender.
(d) The Incremental Deposit L/C Loans (i) shall rank pari passu Notwithstanding anything to the contrary in right this Agreement, each of payment and of security with the Revolving Credit Loansparties hereto hereby agrees that, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity on each Increased Facility Activation Date, (iii) this Agreement shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Deposit L/C Loans; provided that, except with respect be amended to the differences set forth in clauses extent (ii) and (iii) above, any differences must be reasonably acceptable but only to the Administrative Agent.
(eextent) Each Incremental Posting Facility shall rank pari passu in right of payment necessary to reflect the existence and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(f) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans evidenced thereby. Any such deemed amendment may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, effected in writing by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented with the Borrower’s consent (not to be unreasonably withheld) and furnished to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(g) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, 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 Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof (each an “Incremental Facility Closing Date”) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreementhereto.
(h) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Sources: Credit Agreement (AOL Inc.)
Incremental Facilities. (a) The Borrower may, Company may at any time or from time to time after the Closing Datetime, by notice to the Administrative Agent Agents (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request the addition of new credit facilities (ithe "Incremental Facilities") one or more additional tranches consisting of a new tranche of term loans (the “"Incremental Term Loans”), (ii") one or more additional tranches a new tranche of deposit l/c revolving loans (the “Incremental Deposit L/C Loans”), (iii) one or more increases in the amount of the Revolving Credit Commitments (each such increase, an “"Incremental Revolving Commitment Increase”Loans") or (iv) one or more incremental commodity cash collateral posting facilities (each, an “Incremental Posting Facility”)a combination thereof; provided that (A) both at the time of any such request and after giving effect to upon the effectiveness of any the Incremental Facility Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Loans or Incremental Revolving Commitment Increase or Incremental Posting Facility is made or effected (and after giving effect thereto), no Default or Event of Default shall exist and the conditions in Section 7.1 shall be satisfied and (B) the Borrower shall be in compliance with the covenant set forth in Section 10.9 determined on a Pro Forma Basis as of the date of the making of such Incremental Term Loan, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may be, are made (and as of after giving effect thereto) no Default shall exist and the last day of the most recent Test PeriodCompany shall be in compliance with Sections 6.14 and 6.15, in each case determined on a pro forma basis as if such Incremental Term Loans or Incremental Revolving Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility, as applicablethe case may be, had been outstanding on the last day of such Test Period the most recent fiscal quarter for testing compliance therewith.. The Incremental Facilities
(bi) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount not exceeding (in the aggregate) $100,000,000 and shall be effected as Incremental Term Loans or Incremental Revolving Loans (except that is not less more than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of all Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Facilities will be Incremental Revolving Commitment Increases shall not exceed $2,000,000,000.
Loans), (c) The Incremental Term Loans (iii) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, Loans and the Initial B Term Loans, the Delayed Draw (iii) that are effected as Incremental Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) Loans shall not mature earlier than the Initial Term Loan Maturity Date (but may, subject to clause (iv) below, have amortization and commitment reductions prior to such date), (iv) that are effected as Incremental Term Loans shall not have a weighted average life that is shorter than that of the B Term Loans, (v) that are effected as Incremental Revolving Loans shall mature on the Revolving Loan Maturity Date, (iiivi) shall have not accrue interest at a rate or rates in excess of the interest rates and amortization schedules determined by applicable to the Borrower and B Term Loans, in the lenders thereof case of Incremental Term Loans, or the Revolving Loans, in the case of the Incremental Revolving Loans, and (ivvii) may have except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the B Term Loans (in each case, including with respect to mandatory and voluntary prepayments), in the case of Incremental Term Loans, or the Revolving Loans, in the case of the Incremental Revolving Loans; provided that (a) the terms and conditions applicable to Incremental Term Loans maturing after the Term Loan Maturity Date may provide for material additional or different from those of financial or other covenants applicable only during periods after the Initial Term Loan Maturity Date and (b) subject to clause (vi) above, the Incremental Facilities may be priced differently than the B Term Loans and the Delayed Draw Term Revolving Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(d) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(e) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(f) Each . Such notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans may be made, and or Incremental Revolving Commitment Increases and Incremental Posting Facilities Loans, as the case may be provided, by any be. In the event that existing Lender (it being understood that (i) no existing Lender will have Lenders provide commitments in an obligation to make a portion aggregate amount less than the total amount of any the Incremental Term LoanLoans or Incremental Revolving Loans, Incremental Deposit L/C Loan or any Incremental Posting Facilityas the case may be, requested by the Company (ii) no existing Lender with a Revolving Credit Commitment will but the Company shall not have any obligation to provide a portion of request any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such amount of the Incremental Term Loans or Incremental Revolving Loans, Incremental Deposit L/C Loansas the case may be), Incremental Revolving Credit Increases the Company may arrange for one or Incremental Posting Facilities) or by any other bank more banks or other financial institution institutions (any such other bank or other financial institution being called an “"Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld") to such Lender’s or Additional Lender’s making such extend commitments to provide Incremental Term Loans or Incremental Revolving Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for as the case may be, in an assignment of Loans or Commitments, as applicable, aggregate amount equal to such Lender or Additional Lender.
(g) the unsubscribed amount. Commitments in respect of Incremental Term Loans or Incremental Revolving Loans, Incremental Deposit L/C Loansas the case may be, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “"Incremental Facility Amendment”") to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Loan Documents, executed by the BorrowerCompany, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, and the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agentsAgents. The Incremental Facility Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Loan Documents as may be necessarynecessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgents, to effect the provisions of this Section. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date hereof (thereof of each an “Incremental Facility Closing Date”) of the conditions set forth in Section 7.1 and 4.02 (it being understood that all references to "the date of such other conditions as Borrowing" in such Section 4.02 shall be deemed to refer to the parties thereto shall agreeeffective date of such Incremental Facility Amendment). The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreement.
(h) No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilitiesas the case may be, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceagrees.
Appears in 1 contract
Sources: Credit Agreement (Imc Global Inc)
Incremental Facilities. (a) The Borrower may, at any time or from time to time after the Closing Date, 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 additional tranches of term loans (the “Incremental Term Loans”), (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), (iii) one or more increases in the amount of the Revolving Credit Commitments; provided that on or after the 2011 Revolving Credit Commitment Extension Effective Date, increases shall be of the 2016 Revolving Credit Commitments or any other Extended Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase”) or (iv) one or more incremental commodity cash collateral posting facilities (each, an “Incremental Posting Facility”); provided that (A) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase or Incremental Posting Facility is made or effected (and after giving effect thereto), no Default or Event of Default shall exist and the conditions in Section 7.1 shall be satisfied and (B) the Borrower shall be in compliance with the covenant set forth in Section 10.9 determined on a Pro Forma Basis as of the date of the making of such Incremental Term Loan, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may be, and as of the last day of the most recent Test Period, in each case as if such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility, as applicable, had been outstanding on the last day of such Test Period for testing compliance therewith.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of all Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Revolving Commitment Increases shall not exceed $2,000,000,000750,000,000 minus the aggregate principal amount of Permitted Other Debt incurred under Section 10.1(y)(iii) (the “Incremental Limit”).
(c) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw all other Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Initial Term Loan Latest Maturity Date, (iii) shall have interest rates rates, interest margins, rate floors, fees, funding discounts, premiums and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Initial Term Loans and the Delayed Draw other Term Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(d) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the all other Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Latest Maturity Date, (iii) shall have interest rates rates, interest margins, rate floors, fees, funding discounts, premiums and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the other Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(e) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the all other Posting Advances and the Deposit L/C Loans.
(f) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases (including pursuant to New Revolving Credit Increases Commitments) or Incremental Posting Facilities) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(g) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, 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 Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof thereof (each an “Incremental Facility Closing Date”) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreement.
(hi) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments or, after the 2011 Revolving Credit Commitment Extension Effective Date, the 2016 Revolving Credit Commitments or any other Extended Revolving Credit Commitment (other than pursuant to clause (ii) below) pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(ii) At the option of the Borrower and the Incremental Lenders providing such Incremental Revolving Commitment Increases, any Incremental Revolving Commitment Increases may be in the form of one or more separate classes of revolving credit commitments (the “New Revolving Credit Commitments”) which shall constitute a separate Class of Commitments from the Revolving Credit Commitments, any other Extended Revolving Credit Commitments and/or any other New Revolving Credit Commitments (each such separate Class of New Revolving Credit Commitments, a “New Revolving Credit Series” and each Loan thereunder, a “New Revolving Credit Loan”) and the related Loans shall constitute a separate Class of Loans from the Revolving Credit Loans, any other Extended Revolving Credit Loans and/or any other New Revolving Credit Loans (it being understood that New Revolving Credit Commitments of a single New Revolving Credit Series may be established on more than one date); provided that:
(A) the aggregate amount of New Revolving Credit Commitments in effect at any time, when aggregated with the aggregate amount of Revolving Credit Commitments and any other Extended Revolving Credit Commitments at such time, shall not exceed the sum of (x) $2,700,000,000 less all 2011 Revolving Credit Commitment Termination Amounts and (y) the remainder, if positive, of (A) $750,000,000 minus (B) the aggregate amount of Incremental Term Loans and Incremental Deposit L/C Loans established on or prior to such date minus (C) the aggregate amount of Permitted Other Debt previously established in reliance of Section 10.1(y)(iii);
(B) Each tranche of New Revolving Credit Commitments shall be in an aggregate principal amount of not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(b) above).
(C) the terms of such New Revolving Credit Commitments, except for (w) the tenor of the New Revolving Credit Commitments (which shall have a scheduled expiration date no earlier than the Revolving Credit Maturity Date), (x) the size of any swingline loan and/or letter of credit subfacilities under such New Revolving Credit Commitments, (y) the applicable interest rates, interest margins, rate floors, premiums, funding discounts and fees payable with respect to such New Revolving Credit Commitments and (z) the borrowing, repayment and termination of Commitment procedures (in each case which shall be as specified in the applicable Incremental Amendment), shall be similar to the terms of the Revolving Credit Commitments and any other Extended Revolving Credit Commitments (unless otherwise consented to by the Administrative Agent); and
(D) in connection with the establishment of any New Revolving Credit Commitments that will include swingline loan and/or letter of credit subfacilities, any amendment to this Agreement pursuant to this Section 2.14(h)(ii) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms similar (except for the overall size of such subfacilities and the identity of the swingline lender and letter of credit issuer, as applicable, and borrowing, repayment and termination of commitment procedures, in each case which shall be specified in the applicable Incremental Amendment) to the terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit Commitments or otherwise reasonably acceptable to the Administrative Agent and any applicable swingline lender or letter of credit issuer thereunder.
Appears in 1 contract
Sources: Credit Agreement (Energy Future Competitive Holdings CO)
Incremental Facilities. (a) (a)
(a) The Borrower may, at and any time one or more Lenders (including New Lenders) may from time to time after agree that such Lenders shall make, obtain or increase the Closing Dateamount of their Incremental Term Loans (an “Incremental Term Loan Facility”) or Revolving Credit Commitments (“Increased Revolving Credit Commitments”; together with any Incremental Term Loan Facility, the “Incremental Facilities”), as applicable, by notice executing and delivering to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request an Increased Facility Activation Notice specifying (i) one or more additional tranches the amount of term loans (the “Incremental Term Loans”)such increase, (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”)applicable Increased Facility Closing Date, (iii) one or more increases in the amount case of Incremental Term Loans, (x) the Revolving Credit Commitments applicable Incremental Term Maturity Date, (each y) the amortization schedule for such increaseIncremental Term Loans, an “and (z) the Applicable Margin for such Incremental Revolving Commitment Increase”) or (iv) one or more incremental commodity cash collateral posting facilities (each, an “Incremental Posting Facility”)Term Loans; provided that (Ai) both at the time of any such request and after giving effect subject to the effectiveness of Borrower’s right to make an LCALCT Election with respect to any Incremental Amendment referred to belowLimited Condition AcquisitionTransaction , in which case, Section 1.3(b) shall apply, no Default or Event of Default shall exists or would exist after giving effect to such Incremental Facility and at the time that incurrence of any Loans thereunder on the applicable Increased Facility Closing Date, (ii)(x) the maturity date and Weighted Average Life to Maturity of any such Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase or Incremental Posting Loan Facility is made or effected (and after giving effect thereto), no Default or Event of Default shall exist and the conditions in Section 7.1 shall be satisfied and no earlier than (Borbut may be the same as) the Borrower shall be in compliance with the covenant set forth in Section 10.9 determined on a Pro Forma Basis maturity dateLatest Term Maturity Date of any Loans or Commitments outstanding as of the date time of the making issuance thereof, and (y) the Weighted Average Life to Maturity, respectively, of theany such Incremental Term Loan, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or Loan Facility shall be no shorter than the entering into such Incremental Posting Facility, as the case may be, and Weighted Average Life to Maturity (determined without giving effect to voluntary prepayments that reduce amortization of term loans outstanding as of the last day time of the most recent Test Period, in each case as if such Incremental issuance thereof) of the Existing Tranche A Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility, as applicable, had been outstanding on the last day of such Test Period for testing compliance therewith.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of all Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Revolving Commitment Increases shall not exceed $2,000,000,000.
(c) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Initial Term Loan Maturity Date, (iii) shall have the interest rates and amortization schedules schedule applicable to any Incremental Term Loan Facility shall be determined by the Borrower and the lenders thereof and thereunder, (iv) may have subject to the Borrower’s right to make an LCALCT Election with respect to any Limited Condition AcquisitionTransaction, in which case, Section 1.3(b) shall apply, the Borrower shall be in Pro Forma Compliance with the Financial Covenants (such calculation to be made (I) assuming in the case of any Incremental Revolving Credit Commitments, that the full amount thereof is to be drawn and (II) any proceeds of any Incremental Facility shall be disregarded in any netting calculations in determination of such Financial Covenants) and (v) any Increased Revolving Credit Commitments shall be on terms and conditions different from those of pursuant to documentation applicable to the Initial Revolving Credit Facility (including the maturity date in respect thereof) and any Incremental Term Loans Loan Facility shall be on terms and pursuant to documentation agreed to between the Borrower and the Delayed Draw Person providing such Incremental Term LoansLoan Facility; provided that, except with respect (1) to the differences set forth extent such terms are not consistent with, in clauses the case of an Incremental Term Loan Facility, the Tranche A Term Loan Facility (except to the extent permitted by clause (ii) and (iii) above), any differences must shall not be materially more restrictive to Borrower and its Restricted Subsidiaries, when taken as a whole, than those under the Tranche A Term Loan Facility (except if (x) such covenants or other provisions are applicable only to periods after the latest final maturity date of the Tranche A Term Loan Facility, (y) the existing Lenders under the Tranche A Term Loan Facility receive the benefit of such terms or (z) such terms are reasonably satisfactory to the Administrative Agent or are, in the reasonable judgment of the Borrower, generally customary for similarly situated borrowers in the current market conditions) and (2) to the extent such documentation is not consistent with the documentation in respect of the Tranche A Term Loan Facility, it shall be reasonably acceptable satisfactory to the Administrative Agent.
(d) The Incremental Deposit L/C Loans . Notwithstanding the foregoing, (i) shall rank pari passu in right without the consent of payment and of security with the Revolving Credit LoansRequired Lenders, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those aggregate amount of the Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(e) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(f) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Increased Revolving Credit Commitments obtained after the Closing Date pursuant to this paragraph shall not exceed the Incremental Deposit L/C Loans may be made, Facilities Amount and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing without the consent of the Administrative Agent, each increase effected pursuant to this paragraph shall be in a minimum amount of at least $15,000,000 (or such lesser amount of the Incremental Facilities Amount then unused). No Lender with a Revolving Credit Commitment will shall have any obligation to provide a portion of participate in any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(g) Commitments increase described in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, 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 Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof (each an “Incremental Facility Closing Date”) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreement.
(h) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, paragraph unless it agrees to do so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceits sole discretion.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, may at any time or from time to time after the Closing Effective Date, 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 additional tranches of term loans advances (the “Incremental Term LoansAdvances”)) to be used as General Working Capital Increases or Ontelaunee Credit Increases, (ii) one or more (A) increases in the amount of the Working Capital Commitments (each such increase, a “Working Capital Commitment Increase”) to be used as General Working Capital Increases or Ontelaunee Credit Increases or (B) additional tranches of deposit l/c loans working capital commitments (the each, an “Incremental Deposit L/C LoansWorking Capital Facility”), ) to be used as General Working Capital Increases or Ontelaunee Credit Increases or (iii) one or more increases in the amount tranches of the Revolving Credit Commitments funded letter of credit commitments (each such increasea “Synthetic L/C Facility” and, an together with any Incremental Term Advances, Working Capital Commitment Increase and Incremental Working Capital Facility, referred to herein as a “Incremental Revolving Commitment Credit Increase”) or (iv) one or more incremental commodity cash collateral posting facilities (each, an “Incremental Posting Facility”); provided that (A) both at the time of any such request and after giving effect to upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such LSP Gen Finance First Lien Credit Agreement Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase or Incremental Posting Facility Advance is made or effected (and after giving effect thereto), ) no Default or Event of Default shall exist and the conditions in Section 7.1 shall be satisfied and exist, (B) the Borrower shall be in compliance with the covenant set forth in Section 10.9 determined on may make a Pro Forma Basis as maximum of the date of the making of such Incremental Term Loan, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may befour requests for a Credit Increase, and as of (C) the last day of the most recent Test Period, in each case as if such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Borrower shall have received a Ratings Reaffirmation. Each Credit Commitment Increase or Incremental Posting Facility, as applicable, had been outstanding on the last day of such Test Period for testing compliance therewith.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 25,000,000 (provided that such amount may be less than $50,000,000 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 all Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Revolving Commitment (x) General Working Capital Credit Increases shall not exceed $2,000,000,000100,000,000 when taken together with any other Debt incurred pursuant to Section 7.02(b)(v), (y) Ontelaunee Credit Increases shall not exceed $165,000,000 when taken together with any other Debt incurred pursuant to Section 7.02(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 7.02(b)(iii).
(cb) The Any Incremental Term Loans Advances and any Synthetic L/C Facility (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial other Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C LoansAdvances, (ii) shall not mature earlier than the Initial Term Loan Maturity DateDate and shall have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of the Term B Advances, (iii) shall have interest rates and amortization schedules determined by be treated substantially the Borrower and same as the lenders thereof and Term B Advances (iv) may have terms and conditions different from those in the case of the Initial Incremental Term Loans and the Delayed Draw Term Loans; provided thatAdvances, except including with respect to the differences set forth in clauses (ii) mandatory and voluntary prepayments), and (iii) aboveif a Yield Differential exists, any differences must the Applicable Margin then in effect for Eurodollar Rate Advances shall be reasonably acceptable to increased by the Administrative Agent.
(d) amount of such Yield Differential. The Incremental Deposit L/C Loans Working Capital Facility (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C LoansWorking Capital Facility, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Termination Date, (iii) shall have interest rates and amortization schedules determined by be treated substantially the Borrower and same as the lenders thereof and Working Capital Facility (iv) may have terms and conditions different from those of the Deposit L/C Loans; provided thatin each case, except including with respect to the differences set forth in clauses (iimandatory and voluntary prepayments) and (iii) aboveif a Yield Differential exists, any differences must the Applicable Margin then in effect for Eurodollar Rate Advances shall be reasonably acceptable to increased by the Administrative Agentamount of such Yield Differential.
(e) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(fc) Each notice from the Borrower pursuant to this Section 2.14 4.10 shall set forth the requested amount and proposed use and terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Credit Increases. Credit Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, provided by any existing Lender Party (it being understood that (i) no and each existing Term B Lender will have an obligation the right to make a portion of any Incremental Term Loan, Incremental Deposit Advance or provide a portion of any Synthetic L/C Loan or any Incremental Posting Facility, (ii) no each existing Working Capital Lender with a Revolving Credit Commitment will have any obligation the right to provide a portion of any Incremental Revolving Working Capital Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such or Incremental Term Loans, Incremental Deposit Working Capital Facility or Synthetic L/C LoansFacility, Incremental Revolving Credit Increases or Incremental Posting Facilitiesin each case on the terms permitted in this Section 4.10 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that (i) the Administrative Agent and, in the case of a Working Capital Commitment Increase or Incremental Working Capital Facility or Synthetic L/C Facility, each Issuing Bank shall have consented (such consent not to be unreasonably withheldwithheld or delayed) to such Lender’s Lenders or Additional Lender’s making such Incremental Term Loans, Advances or providing such Working Capital Commitment Increases or Incremental Deposit Working Capital Facility or Synthetic L/C Loans or providing such Incremental Revolving Commitment Increases Facility, if such consent would be required under Section 13.6(b) for in connection with an assignment of Loans Advances or Commitments, as applicable, applicable to such Lender or Additional Lender.Lender and (ii) with respect to any Synthetic L/C Facility, an existing Issuing Bank or an Additional Lender shall have agreed to act as issuing bank therefor. LSP Gen Finance First Lien Credit Agreement
(gd) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Credit Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, and the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agentsAgent. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Loan Documents as may be necessary, necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower, Borrower to effect the provisions of this SectionSection 4.10. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof (thereof of each an “Incremental Facility Closing Date”) of the conditions set forth in Section 7.1 5.03 and such other conditions as the parties thereto shall agree. .
(e) The Borrower may will use the proceeds of (i) any General Working Capital Credit Increase solely as contemplated by the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases definition thereof and Incremental Posting Facilities for (ii) any purpose not prohibited Ontelaunee Credit Increase solely as contemplated by this Agreementthe definition thereof.
(hf) No Lender Party shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting FacilitiesCredit Increase, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. agrees.
(g) Upon each increase in the Revolving Credit Working Capital Commitments pursuant to clause (a)(ii)(A) of this SectionSection 4.10, each Working Capital Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Working Capital Commitment Increase (each an a “Incremental Revolving Working Capital Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Working Capital Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Working Capital Lender’s participations hereunder in outstanding Revolving Working Capital Letters of Credit and Swingline Loans Swing Line Advances such that, that after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Working Capital Letters of Credit and (ii) participations hereunder in Swingline Loans Swing Line Advances held by each Working Capital Lender with a Revolving Credit Commitment (including each such Incremental Revolving Working Capital Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Working Capital Commitments of all Working Capital Lenders represented by such Working Capital Lender’s Revolving Credit Commitment. IfWorking Capital Commitment and if, on the date of such increase, there are any Revolving Credit Loans Working Capital Advances outstanding, such Revolving Credit Loans Working Capital Advances shall on or prior to the effectiveness of such Incremental Revolving Working Capital Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans Working Capital Advances made hereunder (reflecting such increase in Revolving Credit Working Capital Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans Working Capital Advances being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere 11.04(c).
(h) This Section 4.10 shall supersede any provision in this Agreement shall not apply Section 4.07 or 11.01 to the transactions effected pursuant to the immediately preceding sentencecontrary.
Appears in 1 contract
Incremental Facilities. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request (i) one or more additional tranches of first-lien term loans (the “Incremental Term Loans”), ) or (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), (iii) one or more increases in the amount of the Revolving Credit Commitments of a Class (each such increase, an “Incremental Revolving Commitment Increase”) or (iv) one or more incremental commodity cash collateral posting facilities (each, an “Incremental Posting Facility”); provided that (Ai) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Loan or Incremental Revolving Commitment Increase or Incremental Posting Facility is made or effected (and after giving effect thereto), ) no Default or Event of Default shall exist and exist, (ii) the conditions financial covenants specified in Section 7.1 shall 8.01 would be satisfied and (B) the Borrower Consolidated Senior Secured Leverage Ratio shall be not exceed 3.75 to 1.00, in compliance with the covenant set forth in Section 10.9 determined each case on a Pro Forma Basis as of pro forma basis at the date of the making of time that any such Incremental Term Loan, Incremental Deposit L/C Loans, Loan or Incremental Revolving Commitment Increase is made or the entering into such Incremental Posting Facility, as the case may be, effected (and as of the last day of after giving effect thereto) and for the most recent Test Period, in each case as if determination period (and assuming such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility, as applicable, had been outstanding on the last day Facility is fully drawn but without netting of any proceeds received thereunder) and (iii) all reasonable out-of-pocket fees and expenses owing in respect of such Test Period for testing compliance therewithincrease to the Administrative Agent and the Lenders shall have been paid.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 10,000,000 (provided that such amount may be less than $50,000,000 10,000,000 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 all the Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Revolving Commitment Increases shall not exceed $2,000,000,000200,000,000 (the “Incremental Cap”) and not more than $50,000,000 of the Incremental Cap may be in the form of Incremental Revolving Commitment Increases.
(c) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loansother Loans outstanding hereunder, (ii) shall not mature earlier than the Initial then Latest Maturity Date and shall not have a Weighted Average Life to Maturity that is shorter than the remaining Weighted Average Life to Maturity of the Tranche B Term Loan Maturity DateLoans, (iii) shall have interest rates rates, rate floors, upfront fees, original issue discounts, premiums and amortization schedules (subject to clause (ii) above) and, subject to Section 4.02 and 4.09, optional and mandatory prepayments (including call protection and prepayment premiums) determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Initial other Term Loans and the Delayed Draw Term Loansoutstanding hereunder; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(d) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(e) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(f) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(g) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, 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 Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof (each an “Incremental Facility Closing Date”) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreement.
(h) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.clauses
Appears in 1 contract
Sources: Credit Agreement (Roundy's, Inc.)
Incremental Facilities. (a) The Borrower may, at any time or from time to time after the Closing Date, 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 additional tranches of term loans (the “Incremental Term Loans”), (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), (iii) one or more increases in the amount of the Revolving Credit Commitments; provided that on or after the 2011 Revolving Credit Commitment Extension Effective Date, increases shall be of the 2016 Revolving Credit Commitments or any other Extended Revolving Credit Commitment (each such increase, an “Incremental Revolving Commitment Increase”) or (iv) one or more incremental commodity cash collateral posting facilities (each, an “Incremental Posting Facility”); provided that (A) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to #4812-2844-92899582-0297 below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase or Incremental Posting Facility is made or effected (and after giving effect thereto), no Default or Event of Default shall exist and the conditions in Section 7.1 shall be satisfied and (B) the Borrower shall be in compliance with the covenant set forth in Section 10.9 determined on a Pro Forma Basis as of the date of the making of such Incremental Term Loan, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may be, and as of the last day of the most recent Test Period, in each case as if such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase or Incremental Posting Facility, as applicable, had been outstanding on the last day of such Test Period for testing compliance therewith.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of all Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Revolving Commitment Increases shall not exceed $2,000,000,0002,000,000,000.750,000,000 minus the aggregate principal amount of Permitted Other Debt incurred under Section 10.1(y)(iii) (the “Incremental Limit”).
(c) The Incremental Term Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Drawall other Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Initial Term Loan LoanLatest Maturity Date, (iii) shall have interest rates rates, interest margins, rate floors, fees, funding discounts, premiums and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Initial Term Loans and the Delayed Draw Drawother Term Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(d) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the ▇▇▇▇▇▇ other Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan LoanLatest Maturity Date, (iii) shall have interest rates rates, interest margins, rate floors, fees, funding discounts, premiums and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the other Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative Agent.
(e) Each Incremental Posting Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the ▇▇▇▇▇▇ other Posting Advances and the Deposit L/C Loans.
(f) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans may be made, and Incremental #4812-2844-92899582-0297 Revolving Commitment Increases and Incremental Posting Facilities may be provided, by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving CreditCommitment Increases (including pursuant to New Revolving Credit Increases Commitments) or Incremental Posting Facilities) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(g) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, 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 Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof hereofthereof (each an “Incremental Facility Closing Date”) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreement.
(h) (i) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments or, after the 2011 Revolving Credit Commitment Extension Effective Date, the 2016 Revolving Credit Commitments or any other Extended Revolving Credit Commitment (other than pursuant to clause (ii) below) pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made #4812-2844-92899582-0297 hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Sources: Amendment No. 2 (Energy Future Intermediate Holding CO LLC)
Incremental Facilities. (a) The Borrower Borrowers may, at any time or from time to time after the Closing Date, by written notice to the Administrative Agent (whereupon from time to time, elect to request prior to the Administrative Agent shall promptly deliver a copy to each of the Lenders)Revolving Credit Maturity Date, request (i) one or more additional tranches of term loans (the “Incremental Term Loans”), (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), (iii) one or more increases in the amount of the Revolving Credit Commitments (each any such increase, an a “Incremental Revolving Commitment Facility Increase”) or (iv) and/or the establishment of revolving credit commitments under one or more incremental commodity cash collateral posting facilities new revolving credit tranches (any such revolving credit commitment, a “New Revolving Credit Commitment”; any Loan made in respect thereof, a “New Revolving Credit Loan”) in amounts that are (i) not to exceed, in the aggregate for all Facility Increases and New Revolving Credit Commitments, $100,000,000 and (ii) individually not less than $20,000,000 (or any lesser amount that is approved by the Administrative Agent) and integral multiples of $5,000,000 in excess of that amount. Each such notice shall specify (A) the date (each, an “Incremental Posting FacilityIncreased Amount Date”)) on which the Borrowers propose that the Facility Increase or New Revolving Credit Commitments shall be effective, which shall be a date not less than five Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each Lender or Affiliate of a Lender or other Eligible Assignee that is consented to by the Administrative Agent (such consent not to be unreasonably withheld or delayed) to whom the Borrowers propose any portion of such Facility Increase or New Revolving Credit Commitments be allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Facility Increase or New Revolving Credit Commitments may elect or decline, in its sole discretion, to provide a portion of such Facility Increase or New Revolving Credit Commitments. Such Facility Increase or New Revolving Credit Commitments, as applicable, shall become effective as of such Increased Amount Date; provided that (A1) both at the time of any such request and after giving effect to the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any on such Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase Increased Amount Date before or Incremental Posting Facility is made or effected (and after giving effect thereto), no Default or Event of Default shall exist and the conditions in Section 7.1 shall be satisfied and (B) the Borrower shall be in compliance with the covenant set forth in Section 10.9 determined on a Pro Forma Basis as of the date of the making of to such Incremental Term Loan, Incremental Deposit L/C Loans, Incremental Revolving Commitment Facility Increase or the entering into such Incremental Posting FacilityNew Revolving Credit Commitments, as the case may be, and as of the last day of the most recent Test Periodexcept, in each the case as if such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental of a provision of any New Revolving Credit Commitment Loan in connection with a Permitted Acquisition or an Acquisition, to the extent such condition is omitted by the applicable Incremental Facility Joinder Agreement; (2) such Facility Increase or Incremental Posting FacilityNew Revolving Credit Commitments, as applicable, had been outstanding on shall be effected pursuant to one or more Incremental Facility Joinder Agreements executed and delivered by the last day of such Test Period for testing compliance therewith.
(b) Each tranche of Incremental Term Loans, each tranche of Incremental Deposit L/C Loans Loan Parties to the Administrative Agent and each Incremental of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 2.20; (3) the Borrowers shall make any payments required pursuant to Section 2.16 in connection with such Facility Increase or New Revolving Commitment Increase Credit Commitments, as applicable; (4) the Borrowers shall be in an aggregate principal amount that pro forma compliance with the Financial Covenant (disregarding whether a Testing Period is not less than $50,000,000 then in effect) after giving effect to such Facility Increase or New Revolving Credit Commitments, as applicable and the Revolving Credit Loans to be made thereunder and the application of proceeds therefrom as if made and applied on such date; (5) the interest rate margins, original issue discount, upfront fees (if any) and interest rate floors (if any) for any New Revolving Credit Loan shall be determined by Borrowers and the applicable Lender; provided that if the Yield in respect of any New Revolving Credit Loans exceeds the Yield with respect to the Revolving Credit Loans by more than 50 basis points, the Applicable Percentage with respect to the Revolving Credit Loans shall be automatically increased on the Increased Amount Date with respect to the Revolving Credit Loans so that the Yield for the Revolving Credit Loans is equal to the Yield with respect to such New Revolving Credit Loans minus 50 basis points; provided further that, if the Adjusted LIBO Rate in respect of such New Revolving Credit Loan includes a floor greater than the floor applicable to the Revolving Credit Loan and such floor is greater than the Adjusted LIBO Rate in effect for a 3-month interest period at such time, such excess amount may (above the greater of such floor and such Adjusted LIBO Rate) shall be less equated to such interest rate for purposes of determining the applicable interest rate under such New Revolving Credit Loan; provided further this clause (5) shall not apply to any New Revolving Credit Loan with a final maturity date that occurs 24 months after the Revolving Credit Maturity Date or later; (6) any New Revolving Credit Loan shall have a Weighted Average Life to Maturity no shorter than $50,000,000 if such amount represents that of the remaining Revolving Credit Loans; (7) the final maturity date of any New Revolving Credit Loan shall be no earlier than the Revolving Credit Maturity Date; (8) all remaining availability under the limit set forth representations and warranties made in the next sentence). Notwithstanding anything Loan Documents shall be true and correct in all material respects immediately prior to, and after giving effect to, such New Revolving Credit Loan on such date; provided that to the contrary hereinextent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; (9) the aggregate amount of all Incremental Term Loans, Incremental Deposit L/C New Revolving Credit Loans shall be senior secured obligations and the Incremental Revolving Commitment Increases shall not exceed $2,000,000,000.
(c) The Incremental Term Loans (i) shall rank pari passu in right of security and payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Initial Term Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof ; and (iv10) the Borrowers shall deliver or cause to be delivered any other documents reasonably requested by Administrative Agent in connection with any such transaction. Once any Facility Increase or New Revolving Credit Commitments shall become effective as of their respective Increased Amount Dates in accordance with this Section 2.24(a), extensions of credit may have be made thereunder in accordance with the terms and conditions different from those of the Initial Term Loans and the Delayed Draw Term Loansapplicable Incremental Facility Joinder Agreement without any additional conditions thereto; provided that, except with respect to each such extension of credit, each of the conditions set forth in Sections 4.02 shall be satisfied. Notwithstanding the foregoing, if the proceeds of any New Revolving Credit Loan will be used to consummate a Permitted Acquisition or an Acquisition, the condition set forth in clause (8) above that representations and warranties made in the Loan Documents shall be true and correct in all material respects immediately prior to, and after giving effect to, such New Revolving Credit Loans on such date may instead be limited in accordance with the terms of the applicable Incremental Facility Joinder Agreement to the accuracy in all material respects of (i) the representations and warranties made by the Loan Parties in Sections 3.01(a), 3.01(d), 3.02(a), 3.02(b)(i)(A), 3.03, 3.11(b), 3.12, 3.19, 3.22 and 3.26 and (ii) any representations and warranties made by or with respect to the differences set forth target, its Subsidiaries and respective businesses in clauses (ii) and (iii) abovethe acquisition, any differences must be reasonably acceptable sale or purchase documentation in connection with such Permitted Acquisition or an Acquisition as are material to the interests of the Lenders (in their capacities as such) but only to the extent that Holdings or any of its Affiliate has the right to terminate its obligations under the applicable acquisition, sale or purchase documentation or decline to consummate the applicable acquisition as a result of a breach of such representation.
(b) To the extent that the Facility Increase is being established on a date when Revolving Credit Commitments exist, subject to the satisfaction of the foregoing terms and conditions, (i) each of the then existing Revolving Credit Lenders, if any, shall assign to each of the Revolving Credit Lenders providing such Facility Increase, and each of such Revolving Credit Lenders shall purchase from each of such existing Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by all Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to such Facility Increase.
(c) The Administrative AgentAgent shall notify Lenders promptly upon receipt of the Borrowers’ notice of each Increased Amount Date and in respect thereof the Facility Increase or the New Revolving Credit Commitments, as applicable, the Lenders providing such Facility Increase or New Revolving Credit Commitments and their respective interests therein.
(d) The Incremental Deposit L/C terms and provisions of the New Revolving Credit Loans (i) shall rank pari passu in right of payment and of security with be identical to the Revolving Credit Loans, except as otherwise reasonably satisfactory to the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances Administrative Agent and the Deposit L/C Loans, permitted by this Section 2.24; provided that (iix) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof any applicable Incremental Facility Joinder Agreement in respect of any New Revolving Credit Commitment may establish an additional letter of credit or swingline subfacility and (ivy) any New Revolving Credit Loans may have different terms and conditions different from those of that are effective after the Deposit L/C Loans; provided that, except Revolving Credit Maturity Date with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable to the Administrative AgentRevolving Credit Loans.
(e) Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Posting Facility Joinder Agreement, this Agreement shall rank pari passu in right of payment and of security with be deemed amended to the Revolving Credit Loans, extent (but only to the Initial Term Loans, extent) necessary to reflect the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.
(f) Each notice from the Borrower pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Facility Increase or New Revolving Credit Commitments evidenced thereby, and to increase the Applicable Percentage if, and to the extent, designated in the applicable Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting FacilitiesFacility Joinder Agreement. Incremental Term Loans and Incremental Deposit L/C Loans Any such deemed amendment may be made, and Incremental Revolving Commitment Increases and Incremental Posting Facilities may be provided, memorialized in writing by any existing Lender (it being understood that (i) no existing Lender will have an obligation to make a portion of any Incremental Term Loan, Incremental Deposit L/C Loan or any Incremental Posting Facility, (ii) no existing Lender with a Revolving Credit Commitment will have any obligation to provide a portion of any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented with the Borrowers’ consent (not to be unreasonably withheld) and furnished to such Lender’s or Additional Lender’s making such Incremental Term Loans, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(g) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in the form of Exhibit L to this Agreement) and, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, 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 Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date hereof (each an “Incremental Facility Closing Date”) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreementhereto.
(h) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
Appears in 1 contract
Sources: Revolving Credit Agreement (Houghton Mifflin Harcourt Co)
Incremental Facilities. (a) The Borrower may, Company shall have the right at any time or and from time to time after the Closing Restatement Date, by upon at least five (5) Business Days’ (or such lesser period as the Administrative Agent may agree) prior written notice to the Administrative Agent (whereupon Agent, to increase the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches of term loans (the “Incremental Term Loans”), (ii) one or more additional tranches of deposit l/c loans (the “Incremental Deposit L/C Loans”), (iii) one or more increases in the amount of the Aggregate Multicurrency Revolving Credit Commitments (each any such increase, an “Incremental Revolving Commitment Increase”) or (iv) establish one or more incremental commodity cash collateral posting facilities additional term loans under this Agreement (eacheach such term loan, an “Incremental Posting FacilityTerm Loan”; each Incremental Revolving Increase and each Incremental Term Loan are referred to collectively as “Incremental Facilities”) 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 that, subject to Section 1.03(e):
(Aa) both at the time aggregate initial principal amount of any such request all Incremental Facilities shall not exceed the greater of (i) $250,000,000 and (ii) an unlimited amount so long as, after giving effect to the effectiveness relevant Incremental Facility on a Pro Forma Basis (assuming, for purposes of any Incremental Amendment referred to belowthis calculation, no Default or Event that the full amount of Default shall exist and at the time that any such Incremental Term Loan, Incremental Deposit L/C Loan, Incremental Revolving Commitment Increase or Incremental Posting Facility is made or effected (fully drawn and after giving effect theretowithout netting the cash proceeds of such Incremental Facility), no Default or Event of Default shall exist and (A) the conditions Loan Parties are in compliance with the financial covenants set forth in Section 7.1 shall be satisfied 8.11 and (B) the Borrower shall be Consolidated Net Leverage Ratio does not exceed 2.50:1.00, in compliance with the covenant set forth in Section 10.9 determined on a Pro Forma Basis as case of each of the date of the making of such Incremental Term Loanforegoing clauses (A) and (B), Incremental Deposit L/C Loans, Incremental Revolving Commitment Increase or the entering into such Incremental Posting Facility, as the case may be, and recomputed as of the last day of the period of the four fiscal quarters most recent Test Period, in each case as if such Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Commitment Increase recently ended for which the Company has delivered financial statements pursuant to Section 7.01(a) or Incremental Posting Facility, as applicable, had been outstanding on the last day of such Test Period for testing compliance therewith.(b);
(b) Each tranche of no Default shall have occurred and be continuing on the date on which such Incremental Term Loans, each tranche of Facility becomes effective or would exist after giving effect to such Incremental Deposit L/C Loans and each Incremental Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50,000,000 (provided that such amount may be less than $50,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of all Incremental Term Loans, Incremental Deposit L/C Loans and the Incremental Revolving Commitment Increases shall not exceed $2,000,000,000.Facility;
(c) The such Incremental Term Loans Facility shall be in a minimum amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (ior such lesser amounts as the Administrative Agent may agree);
(d) such Incremental Facility shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Initial Term Loan Maturity Date, (iii) shall have interest rates and amortization schedules determined be effective only upon receipt by the Borrower and the lenders thereof Administrative Agent of (x) commitments to provide such Incremental Facility from Persons (including existing Lenders) that qualify as Eligible Assignees and (ivy) may have terms documentation from each Person providing a commitment to an Incremental Facility evidencing its commitment in form and conditions different from those of the Initial Term Loans and the Delayed Draw Term Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably substance acceptable to the Administrative Agent.;
(de) The Incremental Deposit L/C Loans (i) shall rank pari passu in right of payment and of security with the Revolving Credit Loans, the Initial Term Loans, the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans, (ii) shall not mature earlier than the Deposit L/C Loan Maturity Date, (iii) Borrowers shall have interest rates and amortization schedules determined by the Borrower and the lenders thereof and (iv) may have terms and conditions different from those of the Deposit L/C Loans; provided that, except with respect to the differences set forth in clauses (ii) and (iii) above, any differences must be reasonably acceptable delivered to the Administrative Agent.:
(ei) Each a certificate of each Loan Party dated as of the date of such Incremental Posting 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 Company, certifying that, before and after giving effect to such Incremental Facility, (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 rank pari passu be true and correct in right all material respects (other than a representation or warranty qualified by materiality or a Material Adverse Effect, which representation and warranty shall be true and correct in all respects) on and as of payment 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 (other than a representation or warranty qualified by materiality or a Material Adverse Effect, which representation and warranty shall be true and correct in all respects) as of security with such earlier date and (2) no Default exists;
(ii) such amendments to the Revolving Credit LoansCollateral 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 Initial Term LoansAdministrative Agent and each Lender (including each Person providing a commitment to such Incremental Facility), dated as of the Delayed Draw Term Loans, the Posting Advances and the Deposit L/C Loans.effective date of such Incremental Facility;
(f) Each notice from the Borrower Company shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that after giving effect to the incurrence of such Incremental Facility on a Pro Forma Basis (assuming, for purposes of this calculation, that the full amount of such Incremental Facility is fully drawn and without netting the cash proceeds of such Incremental Facility), 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 Company has delivered financial statements pursuant to Section 7.01(a) or (b);
(g) if any Multicurrency Revolving Loans are outstanding at the time of an Incremental Revolving Increase, the Company shall, if applicable, prepay one or more existing Multicurrency Revolving Loans (such prepayment to be subject to Section 3.05) in an amount necessary such that after giving effect to such Incremental Revolving Increase, each Lender will hold its pro rata share (based on its Applicable Percentage of the increased Aggregate Multicurrency Revolving Commitments) of outstanding Multicurrency Revolving Loans;
(h) any Incremental Revolving Increase under this Section 2.14 shall set forth have terms identical to those for the requested amount and proposed terms of Multicurrency Revolving Loans under this Agreement; provided that any upfront fees payable to the relevant Incremental Term Loans, Incremental Deposit L/C Loans, Lenders providing such Incremental Revolving Commitment Increases or Incremental Posting Facilities. Incremental Term Loans and Incremental Deposit L/C Loans Increase may be made, and Incremental differ from those paid in connection with the then existing Multicurrency Revolving Commitment Increases and Incremental Posting Facilities may be provided, by any existing Lender (it being understood that Commitments;
(i) no existing Lender will have an obligation the amortization, pricing and use of proceeds applicable to make a portion of any Incremental Term Loan, Loan shall be as set forth in the definitive documentation therefor; provided that such Incremental Deposit L/C Term Loan shall have a final maturity date that is coterminous with or later than the Maturity Date or the maturity date of any outstanding Incremental Term Loan and the weighted average life to maturity of such Incremental Term Loan shall be no shorter than the remaining weighted average life to maturity of the Term Loans or any outstanding Incremental Posting Facility, Term Loan;
(iij) each Incremental Term Loan shall share ratably in any prepayments of the other Term Loans pursuant to Section 2.05 (or otherwise provide for more favorable prepayment treatment for the then outstanding Term Loans) and shall have ratable voting rights as the other Term Loans (or otherwise provide for more favorable voting rights for the then outstanding Term Loans); and
(k) no existing Lender with a Revolving Credit Commitment will shall have any obligation to provide a portion of commitment to an Incremental Facility and any Incremental Revolving Commitment Increase and (iii) the Borrower shall have no obligation to offer any existing decision by a Lender the opportunity to provide any such a commitment to an Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities) or by Facility shall be made in its sole discretion independently from any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent . The commitments to each Incremental Facility and credit extensions under each Incremental Facility shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loansconstitute Commitments and Credit Extensions under, Incremental Deposit L/C Loans or providing such Incremental Revolving Commitment Increases if such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender.
(g) Commitments in respect of Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Credit Commitment, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement (which shall be substantially in entitled to all the form of Exhibit L to this Agreement) andbenefits afforded by, as appropriate, the other Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, except with respect to any Incremental Posting Facility, the Administrative Agent and, with respect to any Incremental Posting Facility, the relevant posting and calculation agents. The Incremental Amendment may, subject to Section 2.14(c), (d) or (e) as the case may be, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessaryLoan Documents, in and shall, without limiting the reasonable opinion of foregoing, benefit equally and ratably from the Guarantees and security interests created by the Collateral Documents. The Lenders hereby authorize the Administrative Agent to enter into, and the BorrowerLenders agree that this Agreement and the other Loan Documents shall be amended by, such Incremental Facility Amendments to the extent (and only to the extent) the Administrative Agent deems necessary in order to establish Incremental Facilities on terms consistent with and/or to effect the provisions of this SectionSection 2.19. The effectiveness of any Incremental Amendment Administrative Agent shall be subject to the satisfaction on the date hereof (each an “Incremental Facility Closing Date”) of the conditions in Section 7.1 and such other conditions as the parties thereto shall agree. The Borrower may use the proceeds of the Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases and Incremental Posting Facilities for any purpose not prohibited by this Agreement.
(h) No Lender shall be obligated to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Commitment Increases or Incremental Posting Facilities, unless it so agrees and the Borrower shall not be obligated to offer any existing Lender the opportunity to provide any Incremental Term Loans, Incremental Deposit L/C Loans, Incremental Revolving Credit Increases or Incremental Posting Facilities. Upon each increase in the Revolving Credit Commitments pursuant to this Section, promptly notify each Lender with a Revolving Credit Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment Increase (each an “Incremental Revolving Commitment Increase Lender”) in respect of such increase, and each such Incremental Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Revolving Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Revolving Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Credit Commitment (including each such Incremental Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment. If, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior as to the effectiveness of such each Incremental Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentenceFacility Amendment.
Appears in 1 contract