Common use of Incremental Loans Clause in Contracts

Incremental Loans. (a) At any time or from time to time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 2 contracts

Sources: First Lien Credit Agreement (PGA Holdings, Inc.), First Lien Credit Agreement (PGA Holdings, Inc.)

Incremental Loans. Subject to the satisfaction of the conditions set forth in Section 5, on and as of the Ninth Amendment Closing Date, immediately after the consummation of the transactions described in clause (a) At any time or from time above, pursuant to time after Section 2.14 of the Closing Date, Term Credit Agreement: (i) The 2024 Incremental Lender hereby agrees to provide to the Borrower may by written notice its 2024 Incremental Commitment set forth opposite its name under the heading “2024 Incremental Commitment” on Schedule 1 to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the this Ninth Amendment. The full amount of Revolving Commitments (the 2024 Incremental Loans shall be drawn by the Borrower in a “Revolving Facility Increase”), (B) single drawing on the establishment of one Ninth Amendment Closing Date and amounts paid or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be prepaid in respect of the same tranche as such existing Term 2024 Incremental Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “may not be reborrowed. The 2024 Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, Loans (x) together with shall be made pursuant to (and form part of) the aggregate principal amount existing Class of any Incremental Notes, $100,000,000 plus 2024 Extended Term Loans and (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions interest rates (including Applicable Rates), amortization, voluntary prepayment terms and mandatory prepayment terms applicable to the 2024 Extended Term Loans as set forth in Section 10.6(c) the Credit Agreement (as they would otherwise amended by this Ninth Amendment). The 2024 Incremental Term Loans shall be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share scheduled amortization set forth in the Collateral Credit Agreement (as amended by this Ninth Amendment) and with the remaining outstanding principal amount due and payable in full on a pari passu basis; the Maturity Date for the existing 2024 Extended Term Loans. (3ii) the The 2024 Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender Loan Parties party hereto agree that this Ninth Amendment shall constitute an Incremental Amendment pursuant to and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4accordance with Section 2.14(f) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender)Term Credit Agreement. (biii) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to Immediately upon the satisfaction incurrence of the foregoing terms and conditions, (a) each of 2024 Incremental Loans on the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditionsNinth Amendment Closing Date, (i) the 2024 Incremental Term Loans shall be added to (and form part of) each New Borrowing of existing 2024 Extended Term Lender Loans outstanding under the Credit Agreement immediately after the consummation of such tranche shall make a Loan the transactions described in clause (a) above but prior to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction consummation of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) transactions described in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by this clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments (based on the Increased Amount Daterelative sizes of the various outstanding Borrowings), so that each Lender with outstanding 2024 Extended Term Loans (including each 2024 Incremental Lender with outstanding 2024 Incremental Loans) will participate proportionately in each then outstanding Borrowing of 2024 Extended Term Loans with the same Interest Period as the existing 2024 Extended Term Loans, (2ii) the 2024 Incremental Term Loans shall constitute a single Class of Term Loans with the 2024 Extended Term Loans (and shall be fully fungible with the existing 2024 Extended Term Loans), (iii) the 2024 Incremental Term Loans shall constitute “2024 Extended Term Loans” for all purposes under, and subject to the provisions of Sections 2.03(n) of, the Loan Documents, and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3iv) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit 2024 Incremental Term Loans shall be governed secured by the same assignment Collateral and participation provisions applicable guarantied on identical terms as the existing 2024 Extended Term Loans in each case pursuant to Revolving Commitments and Revolving Credit the respective Loan Documents. (iv) The 2024 Incremental Commitment of the 2024 Incremental Lender shall automatically terminate upon the funding of the 2024 Incremental Loans on the Increased Amount Ninth Amendment Closing Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates;. (v) The proceeds of the New Term 2024 Incremental Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in shall be used by the applicable Incremental Joinder Agreement;Borrower to fund the 2024 Refinancing. (vi) with regards to any New Term Loan, if The Borrower hereby designates that the applicable interest rate relating to such New Term Loan exceeds the interest rate full principal amount of 2024 Incremental Loans is being incurred in reliance on clause (d)(iii)(A) of Section 2.14 of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit LoansAgreement. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 2 contracts

Sources: Term Loan Credit Agreement (BRP Inc.), Term Loan Credit Agreement (BRP Inc.)

Incremental Loans. (a) At any time or from time to time and after the Closing First Amendment Effective Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Credit Commitments (a “or Extended Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments Credit Commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans”). Each Incremental Commitment shall be in an ; provided that (1) the total aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to for all such Incremental Loan Commitments incurred after the contrary herein, the Incremental Commitments Closing Date shall not exceed, (as of any date of Incurrence thereof) exceed the greater of (x) together with the aggregate principal amount greater of any Incremental Notes, (i) $100,000,000 plus 150,000,000 and (ii) 25.0% of Consolidated EBITDA for the most recently ended Test Period and (y) an additional amount of Incremental Commitments so long as subject to the Limited Condition Transaction Provisions in the case of this clause a Limited Condition Transaction, the maximum amount of additional Indebtedness that would cause the Consolidated Total Secured Leverage Ratio as of the four consecutive Fiscal Quarter period most recently ended for which financial statements have been delivered pursuant to Section 8.1(a) or 8.1(b) prior to the proposed Increased Amount Date, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness (yand assuming any Incremental Revolving Credit Increase is fully drawn), to not exceed 3.50:1.00 (1such amount, the “Incremental Facility Amount”) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than 5 Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) subject to the Limited Condition Transaction Provisions in the case of a Limited Condition Transaction, no Default or Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such (1) any Incremental Commitments, as applicable; Loan Commitment and (2) the making of any Incremental Commitments will share Loans pursuant thereto; (B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the (1) Borrower is in compliance with the financial covenants set forth in Section 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (C) subject to the Limited Condition Transaction Provisions in the Collateral case of a Limited Condition Transaction, each of the Specified Representations shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice to any Revolving Lender with respect to an increase in Incremental Term Loan (the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) terms of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental relevant Lender Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall):

Appears in 2 contracts

Sources: Credit Agreement (SYNAPTICS Inc), First Amendment and Lender Joinder Agreement (SYNAPTICS Inc)

Incremental Loans. (a) At any time or from time prior to time after the Closing date that is six (6) months prior to the Revolving Credit Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments incremental Revolving Credit Commitments (any such new commitmentsincremental Revolving Credit Commitment, collectively with a “New Loan Revolving Credit Commitment”) to make incremental revolving credit loans (any Revolving Facility Increasesuch incremental revolving credit loans, the “New Revolving Credit CommitmentsLoans”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for all such New Loan Revolving Credit Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $150,000,000 and (2) the total aggregate amount for each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments any New Loan Revolving Credit Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender and/or any Affiliate of any Lender and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide a New Loan Revolving Credit Commitment (B) the identity of each existing Lender or other Person that is an Assignee (eachany such Person, a “New Revolving Credit Lender”). Any Lender or any New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender offered or approached to provide all or a portion of the Incremental Commitments any New Loan Revolving Credit Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental such New Loan Revolving Credit Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to . Any New Term Commitments, any Affiliated Lender providing a New Term Loan Revolving Credit Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments(1) any New Loan Revolving Credit Commitment, as applicable; and (2) the Incremental Commitments will share in making of any New Loans pursuant thereto; (B) [Intentionally Omitted]; (C) the Collateral proceeds of any New Loans shall be used for the purposes permitted by Section 9.13(b); (D) each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (bE) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case terms of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche Loan shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event:relevant Joinder Agreement; (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; [intentionally omitted], (ii) (A) the final maturity date of any tranche of the Applicable Margin and pricing grid, if applicable, for such New Term Loans shall be no earlier than determined on the original Term Maturity Date and (B) applicable Increased Amount Date; provided that if such Applicable Margin would exceed the final maturity date of any tranche of current Applicable Margin for the New existing Revolving Credit Loans, the Applicable Margin for the existing Revolving Credit Loans shall be no earlier than automatically increased to equal the original Revolving Maturity Date; Applicable Margin for the New Loans and (iii) (A) in the case of a Term Loan Increase, any such New Term Loans shall be on subject to the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation conditions as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical (except with respect to the Revolving Commitments, on the Increased Amount Credit Maturity Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shalland

Appears in 2 contracts

Sources: Credit Agreement (Amerigas Partners Lp), Credit Agreement (Amerigas Partners Lp)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the The Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan or revolving commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be ) hereunder, in an aggregate principal amount that is for all such New Commitments not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Maximum Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000Amount. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental the New Commitments shall be effective, which date shall be a date after the date on which such notice is delivered reasonably acceptable to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocationsAgent; provided that (w) any Lender offered or approached to provide all or a portion of the Incremental any New Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental New Commitments shall become effective, effective as of such Increased Amount Date; provided that (1i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental CommitmentsNew Commitments and to the making of any Tranche of New Loans pursuant thereto and after giving effect to any Permitted Acquisition or similar Investment consummated in connection therewith (provided, as applicablehowever, that, if the proceeds of any New Loans shall be used for a Permitted Acquisition, the Lenders providing such New Loans may waive any such Default or Event of Default existing on the applicable Increased Amount Date); (2ii) the Incremental Commitments will proceeds of any New Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Investments permitted under Section 7.7 and prepayments or refinancing of Permitted Other Indebtedness); (iii) the New Loans shall share ratably in the Collateral on a pari passu basisCollateral; (3iv) no Lender shall be obligated to provide any portion of any New Commitment; (v) the Incremental CommitmentsNew Loans that are term loans (“New Term Loans”) shall share ratably or less in any mandatory prepayments of the existing Term Loans; (vi) in the case of any New Term Loans, as applicable, the maturity date thereof shall not be earlier than the Term B2 Maturity Date and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of Term B2 Loans; (vii) in the case of any New Loans that are revolving loans or commitments (“New Revolving Loans”) the maturity date or commitment termination date thereof shall not be earlier than the Revolving Termination Date and such New Revolving Loans shall not require any scheduled commitment reductions prior to the Revolving Termination Date; (viii) the New Revolving Loans shall share ratably or less in any mandatory prepayments of the existing Revolving Loans; (ix) all terms and documentation with respect to any New Loans which differ from those with respect to the Loans under the applicable Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent permitted by clauses (vi) and (vii) above and the last sentence of this paragraph); (x) such New Loans or New Commitments shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the Administrative Agent and one or more New Revolving Credit Lender Lenders; (xi) with respect to any Mortgages that exist at the time of such New Loans, modifications to such Mortgages may be recorded and the Borrower shall deliver or cause to be delivered any title endorsements reasonably requested by Administrative Agent; (xii) the Borrower shall deliver or cause to be delivered any customary legal opinions, including legal opinions from local counsel with respect to any mortgage modifications, or other documents reasonably requested by Administrative Agent in connection with any such transaction, including any supplements or amendments to the Security Documents providing for such New Loans to be secured thereby; (xiii) with respect to any New Term LenderLoans incurred on or prior to the date that is 18 months after the Closing Date, if the All-In Yield relating to the New Term Loans exceeds the All-In Yield then in effect with respect to the Term B2 Loans by more than 50 basis points the Applicable Margin relating to (x) the existing Term B2 Loans shall be adjusted so that the All-In Yield relating to such New Term Loans does not exceed the All-In Yield applicable to the existing Term B2 Loans by more than 50 basis points (the amount of any such adjustment, the “MFN Adjustment”) and (y) the All-In Yield applicable to the existing Term B1 Loans shall be adjusted by an amount equal to the MFN Adjustment; (xiv) there shall be no borrower (other than the Borrower) and no guarantors (other than the Guarantors) in respect of such New Loans; and (xv) the New Loans shall not be secured by any asset of the Borrower and its subsidiaries other than the Collateral. Any New Loans made on an Increased Amount Date that have terms and provisions that differ from those of the Term Loans or Revolving Loans, as applicable, and to outstanding on the extent date on which such New Loans are made shall be designated as a separate tranche (a “Tranche”) of Term Loans or Revolving Loans, as applicable, for all purposes of this Agreement, except as the Administrative Agent relevant Joinder Agreement otherwise provides. For the avoidance of doubt, the rate of interest and the Issuing Lender amortization schedule (if applicable) of any New Commitments shall be determined by the Borrower and the Swingline Lender, or another form of incremental amendment, each of which applicable New Lenders and shall be recorded set forth in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender)applicable Joinder Agreement. (b) On any Increased Amount Date on which any New Revolving Credit Commitments are effected through a Revolving Facility IncreaseCommitment become effective, subject to the satisfaction of the foregoing terms and conditions, each lender with a New Commitment (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenderseach, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term LoanLender”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to such New Commitment. (c) The terms and provisions of the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche Tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth hereinin the relevant Joinder Agreement, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity those of the then outstanding Term applicable Loans on the date and for purposes of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increasethis Agreement, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any or New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant deemed to the same documentation as the be Term Loans, Revolving Loans and the or Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 2 contracts

Sources: Credit Agreement (Engility Holdings, Inc.), Credit Agreement (Engility Holdings, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Aa) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to (i) increase the Revolving Termination Dateoutstanding principal amount of the outstanding Term Loans or (ii) establish one or more additional term loan tranches (any such increase or additional term loan, an “Incremental Term Loan”); or (b) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstandingTerm Loans, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25Loans”); provided that in no event (i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed the New Revolving Credit Commitments exceed Incremental Cap and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $30,000,0005,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed), to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and (B) the identity of Issuing Lender shall each existing approve each Incremental Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes providing any portion of an Incremental Revolving Credit Commitment (such approval not to be unreasonably withheld, conditioned or delayed). Any proposed Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender offered or approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an such Incremental Loan Commitment. No Loan or Commitment (it being understood that there is no of any Lender shall be increased without the consent of such Lender, and none of the Lead Arrangers and/or their Affiliates shall have any obligation to approach any existing Lenders to provide arrange any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Loans without its prior written agreement. Any Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share in the Collateral on a pari passu basis; Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; provided that in connection with a requested borrowing of any Incremental Term Loan for the express purposes of funding, in whole or in part, the purchase price of a Permitted Acquisition that is a Limited Condition Transaction, the condition of this clause (i) shall be (x) no Potential Default or Event of Default exists or would exist at the time a binding purchase agreement for such transaction is entered into by the applicable Loan Party and (y) the absence of a Specified Event of Default at the time of and after giving effect to the consummation of such Limited Condition Transaction; (ii) the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants specified in Sections 9.12 and 9.13, in each case based on the financial statements most recently delivered pursuant to Section 8.11(a) or 8.11(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully drawn) and (z) any Permitted Acquisition consummated in connection therewith; (iii) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date (regardless of whether the Incremental Loan Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”are actually drawn on the Increased Amount Date) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that in Section 7.1 (assuming connection with a requested borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to for the satisfaction sole express purpose of financing in whole or in part the foregoing terms and conditionspurchase price for a Limited Condition Transaction, (i) each New Term Lender of such tranche representations and warranties shall make a Loan be true and correct in all material respects (except to the Borrower (a “New Term Loan”extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects) in an amount equal to its New Term Commitment on and as of the date of effectiveness of the definitive purchase agreement for such tranche, Limited Condition Transaction and (ii) each New Term Lender the representations and warranties required to be correct and accurate at the time of the closing of such tranche shall become a Lender hereunder with respect Limited Condition Transaction and funding of any applicable Incremental Term Loan will be limited to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental LoansSpecified Representations; (iv) all other material terms the proceeds of the New Revolving Credit Commitments and New Revolving Credit any Incremental Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except used for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage general corporate purposes of the Revolving Commitments on the Increased Amount Date (Borrower and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder its Subsidiaries (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity datesPermitted Acquisitions); (v) the New Term Loans may participate on any proposed Incremental Lender shall join this Agreement as a pro rata basis or less than pro rata basis (but not on Lender pursuant to a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Lender Joinder Agreement; (vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with regards to any New the other Obligations on a pari passu basis; (1) in the case of each Incremental Term Loan, if the applicable interest rate relating to : (I) such New Incremental Term Loan exceeds will mature and amortize in a manner reasonably acceptable to the interest rate Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity (as reasonably determined by the Administrative Agent) of the initial Term Facility Loans or a maturity date earlier than the Term Loan Maturity Date; (II) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by more than 50 basis pointsthe Administrative Agent, the applicable interest rate relating to such Incremental Lenders and the Borrower on the applicable Increased Amount Date; (III) any Incremental Lender making any Incremental Term Facility Loan shall be adjusted entitled to the same voting rights as the existing Lenders under the Term Loan Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Incremental Term Loans to be equal prepaid prior to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New initial Term Loans) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the initial Term Loans (which such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and (IV) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 5.17, be identical to the terms and conditions applicable to the initial Term Loans; (2) in the case of each Incremental Revolving Credit Increase: (I) such Incremental Revolving Credit Increase shall be deemed part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to constitute a like amount of original issue discount) paid by fees, in each case at the Borrower rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility (other than with respect to the payment of any upfront and/or arrangement fees in connection with the establishment thereof); (II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Lenders under the New Term Loan and such initial Term Revolving Credit Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the applicable margin on any initial Term Facility that became effective subsequent Incremental Revolving Credit Increase to the Closing Date but be terminated prior to termination of the time existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of such New Term Loan shall also be included in such calculations; provided, further, that if prepayments on the reserve adjusted Eurodollar Rate (same basis as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New existing Revolving Credit Loans will rank pari passu in right (such prepayments to be shared pro rata on the basis of payment with existing Term Loans and the original aggregate funded amount thereof); and (III) the outstanding Revolving Credit Loans and Ratable Shares of Swingline Loans and Letter of Credit Obligations will be reallocated by the liens securing Administrative Agent on the New Term Loans and/or New applicable Increased Amount Date among the Lenders to the Revolving Credit Loans will rank pari passu with Facility (including the liens securing the existing Term Loans and Incremental Lenders providing such Incremental Revolving Credit LoansIncrease) in accordance with their revised Ratable Shares (and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required). (f3) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.255.17, and for without the avoidance consent of doubtany other Lenders; and (4) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, this Section 2.25 shall supersede without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any provisions in Section 10.7 or 10.1 to the contrarysuch transaction. (gc) The Loans Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and Commitments extended conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or established be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to this paragraph the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall constitute Loans and Commitments under, and shallbecome a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Revolving Credit Commitment.

Appears in 2 contracts

Sources: Credit Agreement (Cadre Holdings, Inc.), Credit Agreement (Cadre Holdings, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the The Borrower may by written notice to the Administrative Agent Agent, elect to request establish (Ai) prior to the Revolving Termination Date, one or more increases in new term loan commitments (the amount of Revolving Commitments (a Revolving Facility IncreaseNew Term Loan Commitments”), in an aggregate amount up to $100,000,000 and/or (Bii) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than up to $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000400,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental New Term Loan Commitments and/or New Revolving Credit Commitments shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent Agent, (B) the amount of such New Term Loan Commitments and/or New Revolving Credit Commitments, which must be at least $25,000,000, and (BC) the identity of each existing (x) Lender or (y) other Person Purchaser that is an Assignee has been approved in writing by the Administrative Agent (eachwhich approval, in the case of the Administrative Agent, will not be unreasonably withheld or delayed) and the Borrower (each such Lender or Purchaser, a “New Term Loan Lender” or a “New Revolving Credit Lender” or “New Term Lender,” ”, as applicable) to whom the Borrower proposes any portion of which such Incremental Commitments, New Term Loan Commitments and/or New Revolving Credit Commitments will be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental New Term Loan Commitments and/or New Revolving Credit Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide and/or a New Revolving Credit CommitmentsCommitment. Such Incremental New Term Loan Commitments and/or New Revolving Credit Commitments shall become effective, effective as of such Increased Amount Date; provided that that, both before and after giving effect to such New Term Loan Commitments and/or New Revolving Credit Commitments (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental New Term Loan Commitments and/or New Revolving Credit Commitments, as applicable; (2) both before and after giving effect to the Incremental Commitments will share making of any New Term Loans and/or Revolving Loans, each of the conditions set forth in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, Section 5.2 shall be effected pursuant to one satisfied, unless waived by each New Term Loan Lender or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (43) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities 7.20 after giving effect to such Incremental CommitmentNew Term Loan Commitments and/or New Revolving Credit Commitments as of the last day of the most recently ended fiscal quarter for which a compliance certificate has been delivered pursuant to Section 7.1(v); (4) the New Term Loan Commitments and/or New Revolving Credit Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Term Loan Lender and/or the New Revolving Credit Lender and the Administrative Agent, and any Incremental Commitments previously made pursuant to this each of which shall be recorded in the Register (as defined in Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans13.3.4); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans deliver to the Administrative Agent, Agent evidence reasonably satisfactory to the Collateral Administrative Agent and the Lenders (other than that any Defaulting Lender). (b) increase to be effected under this Section 2.25 has been duly authorized by all appropriate action. On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increaseeffected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereofthereof (together with accrued interest), such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the its New Revolving Credit Commitments Commitment and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Loan Commitments of any tranche are effected (including through any Term Loan Increase)effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender of such tranche shall make a Term Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such trancheLoan Commitment, and (ii) each New Term Loan Lender of such tranche shall become a Term Loan Lender hereunder with respect to the New Term Loan Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify applicable Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Term Loan Commitments and the New Term Loan Lenders and/or the New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments Lenders. The terms and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Loan Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between identical to the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New existing Term Loans and New the existing Term Commitments or such New Revolving Credit Loans Loan Commitments. The terms and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity provisions of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant identical to the same documentation as existing Revolving Credit Commitments. In any event, the Revolving upfront fees applicable to the New Term Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of and/or the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis determined by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu Lenders and shall be set forth in right of payment with existing Term Loans and Revolving each applicable Additional Credit Loans and the liens securing the New Term Loans and/or New Revolving Extension Amendment. Each Additional Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement Extension Amendment may, without the consent of any other LendersLenders (unless the consent of such other Lenders is required by Section 9.2), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions provision of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Revolving Credit and Term Loan Agreement (Duke Realty Limited Partnership/)

Incremental Loans. (a) At any time or from time prior to time after the Closing date that is six (6) months prior to the Stated Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments incremental Revolving Credit Commitments (any such new commitmentsincremental Revolving Credit Commitment, collectively with a “New Loan Revolving Credit Commitment”) to make incremental revolving credit loans (any Revolving Facility Increasesuch incremental revolving credit loans, the “New Revolving Credit CommitmentsLoans”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for all such New Loan Revolving Credit Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $300,000,000 and (2) the total aggregate amount for each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments any New Loan Revolving Credit Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender and/or any Affiliate of any Lender and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide a New Loan Revolving Credit Commitment (B) the identity of each existing Lender or other Person that is an Assignee (eachany such Person, a “New Revolving Credit Lender”). Any Lender or any New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender offered or approached to provide all or a portion of the Incremental Commitments any New Loan Revolving Credit Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental such New Loan Revolving Credit Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to . Any New Term Commitments, any Affiliated Lender providing a New Term Loan Revolving Credit Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments(1) any New Loan Revolving Credit Commitment, as applicable; and (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form making of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Ugi Corp /Pa/)

Incremental Loans. (a) At any time or Other than during the Covenant Relief Period, from time to time after during the Closing DateAvailability Period, subject to the terms and conditions set forth herein, the Borrower may may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Loan Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively an “Incremental Revolving Loan Commitment” and, together with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”) to make revolving loans under the Revolving Loan Facility (any such increase, an “Incremental Revolving Loan Increase” and, together with the Incremental Term Loans, the “Incremental Loans”). Each ; provided that (i) the Borrower may not request any Incremental Commitment Loan Commitments or Incremental Loans during the Covenant Relief Period and (ii) at the time of each such request and upon the effectiveness of each Incremental Amendment, (A) no Default has occurred and is continuing or shall be result therefrom and (B) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amountclause (A) above. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $100,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of remaining amount permitted pursuant to the end of foregoing clause (1). (b) Each notice from the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made Borrower pursuant to this Section 2.25); provided that in no event 2.21 shall set forth the New Revolving Credit Commitments exceed $30,000,000requested amount of the relevant Incremental Loan Commitment. Each such notice shall specify (A) the date (eachAny additional bank, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effectivefinancial institution, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached elects to provide all or a portion of any Incremental Loan Commitment shall be reasonably satisfactory to the Borrower, the Administrative Agent, and with respect to Incremental Commitments may elect Revolving Loan Commitments, each Swingline Lender and each Issuing Bank (any such bank, financial institution, existing Lender or declineother Person being called an “Incremental Lender”) and, in its sole discretionif not already 4145-1594-0167.14145-1594-0167.7 a Lender, shall become a Lender under this Agreement pursuant to provide an Incremental Amendment. Each Incremental Loan Commitment shall be effected by an amendment (it being understood that there is no obligation an “Incremental Amendment”) to approach any existing Lenders this Agreement and, as appropriate, the other Loan Documents, executed by STX, the Borrower, such Incremental Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Loan Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating theretounless it so agrees. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments in respect of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender Incremental Revolving Loan Commitment shall become Revolving Commitments (or in the case of any Incremental Revolving Loan Commitment to be provided by an existing Lender, an increase in such tranche shall make a Loan to the Borrower (a “New Term Loan”Lender’s Revolving Commitment) in an amount equal to its New Term Commitment of such tranche, under this Agreement and (ii) each New Incremental Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Loan Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments Commitment (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable facility under this Agreement). An Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.21. The effectiveness of any Incremental Amendment shall, unless otherwise agreed to by the Administrative Agent and for the avoidance Incremental Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Closing Date”) of doubt, this Section 2.25 shall supersede any provisions each of the conditions set forth in Section 10.7 or 10.1 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the contraryIncremental Closing Date). The proceeds of any Incremental Loans made pursuant to Incremental Loan Commitments will be used only for working capital and other general corporate purposes of the Borrower and its subsidiaries. (gd) The Loans and Commitments extended or established Upon each Incremental Revolving Loan Increase pursuant to this paragraph shall constitute Loans Section 2.21, (i) each Lender immediately prior to such increase will automatically and Commitments underwithout further act be deemed to have assigned to each Incremental Lender, and shalleach Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such ▇▇▇▇▇▇’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Incremental Revolving Loan Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Lender (including each Incremental Lender) will equal such Lender’s Applicable Percentage and (ii) if, on the date of such Incremental Revolving Loan Increase, there are any Revolving Loans outstanding, such Revolving Loans shall be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Incremental Revolving Loan Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.15. 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 (Seagate Technology Holdings PLC)

Incremental Loans. (a) At Borrowers may at any time or and from time to time after the Closing Date, the Borrower may Date by written notice from the Borrower Representative to the Administrative Agent elect (whereupon the Administrative Agent shall make such notice available to each of the Lenders) request (A) prior to the Revolving Termination Date, one or more increases in additional new revolving loan tranches (an “Incremental Loan”) increasing the aggregate amount of Revolving Commitments the commitments hereunder (each such increase, a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Commitment Increase”) in an aggregate amount not to exceed $250,000,000400,000,000 from any existing Lender or, subject to compliance by the Swiss Borrower with the Non-Bank Rules, an Additional Incremental Lender (which Additional Incremental Lender shall become a “Lender” hereunder subject to the prior consent of the Administrative Agent and Borrowers, such consent not to be unreasonably withheld, conditioned or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”delayed). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such written notice shall specify specify: (Ai) the date on which Borrowers propose that the Commitment Increase shall be effective (each, an the Increased Amount Loan Increase Effective Date”) on which the Borrower proposes that such Incremental Commitments shall be effective), which shall be a date not less than ten (10) Banking Days after the date on which such notice is delivered to the Administrative Agent Agent, (ii) the amount of such proposed Commitment Increase (which shall not exceed an aggregate of $250,000,000400,000,000 for all Commitment Increases), and (Biii) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit including each Additional Incremental Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any Borrowers propose each portion of such Commitment Increase and related Incremental Commitments, Loan be allocated and the amounts amount of each such allocations; provided that (w) allocation. No existing Lender will have any Lender approached obligation to provide all accept or a make any portion of the any Incremental Commitments may elect Loan or declineto make any Loan associated with any Commitment Increase. Each Lender, in its sole discretion, to provide an Incremental may either grant or deny any increase in its respective commitment. (b) A Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender Increase shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent become effective as of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Loan Increase Effective Date; provided that each of the following conditions precedent is satisfied: (1i) no Default or Event of Default shall exist on such Increased Amount Date after giving effect have occurred and be continuing or would result from any borrowing to such Incremental Commitments, be made as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions Loan Increase Effective Date or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender otherwise with respect to the New Revolving Credit Commitments Commitment Increase; (ii) the representations and warranties made by Borrowers herein shall be true and correct in all matters relating theretomaterial respects (or in all respects to the extent otherwise qualified by materiality or Material Adverse Effect) on and as of the Loan Increase Effective Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date (in which event such representations and warranties shall have been true and correct in all material respects (or in all respects to the extent otherwise qualified by materiality or Material Adverse Effect) on and as of such earlier date); (iii) the Borrower Representative shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the U.S. Borrower certifying clauses (i) and (ii); and (iv) the Commitment Increase has been accepted by one or more Lenders or Additional Incremental Lenders. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments The terms and conditions of any tranche are effected (including through any Term Incremental Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its a Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche Increase shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any eventfollows: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche on and after each Loan Increase Effective Date, each Lender (including Additional Incremental Lender(s)) shall be no shorter than obligated, to the Weighted Average Life extent of its commitment, in accordance with the requirements set forth in this Agreement to Maturity provide Loans to Borrowers under each Incremental Loan subject to Borrowers’ compliance with the terms and conditions of the then outstanding Term Loans on the date of incurrence of such New Term this Agreement applicable to all Loans, including with respect to borrowing procedures and conditions precedent to all Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans each Commitment Increase shall be no earlier than the original Term Maturity Date in a minimum amount of $5,000,000 and (B) the final maturity date in integral multiples of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date;$1,000,000 in excess thereof; and (iii) (A) in the case of a Term Loan Increase, any New Term Loans each Commitment Increase shall be on the same terms and documented pursuant to an incremental joinder agreement (the same documentation as the Term Loans increased thereby and (B“Incremental Joinder”) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant reasonably satisfactory to the same documentation as Administrative Agent, executed by ▇▇▇▇▇▇▇▇▇, the Revolving Loans Administrative Agent and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing Lender making such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount DateLoan. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable The Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.5. In addition, and for the avoidance of doubtunless otherwise specifically provided herein, all references in this Section 2.25 Agreement or any other Credit Document to Loans shall supersede any provisions in Section 10.7 or 10.1 be deemed to the contraryinclude a reference to Incremental Loans that are Loans made pursuant to this Agreement. (gd) Prior to each respective Loan Increase Effective Date, the Administrative Agent shall receive from each Additional Incremental Lender an administrative questionnaire in the form reasonably satisfactory to the Administrative Agent or, in the case of an existing Lender, an update to such administrative questionnaire and the Administrative Agent shall adjust each Lender’s Pro Rata Share to account for each such Lender and/or Additional Incremental Lender and each Commitment Increase and related Incremental Loan. (e) The Incremental Loans and Commitments extended or Commitment Increases established pursuant to this paragraph Section 2.5 shall constitute Loans and Individual Commitments for all purposes under, and shall be entitled to all the rights, benefits and remedies afforded by this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably, on a pari passu basis, from the guarantees of the Guarantors. (f) Each Lender providing an Incremental Loan or a Commitment Increase on the Loan Increase Effective Date shall make a Loan, the proceeds of which will be used to prepay the Loans of the other Lenders immediately prior to such Loan Increase Effective Date, so that, after giving effect thereto, the Loans outstanding are held by the Lenders pro rata based on their Individual Commitments after giving effect to such Loan Increase Effective Date. If there is a new borrowing of Loans on such Loan Increase Effective Date, the Lenders after giving effect to such Loan Increase Effective Date shall make such Loans in accordance with Article 3.

Appears in 1 contract

Sources: Revolving Facility Credit Agreement (Royal Gold Inc)

Incremental Loans. (a) At any time or from time prior to time after the Closing Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new up to three (3) incremental revolving credit commitments (any such new commitmentsincremental revolving credit commitment, collectively with an “Incremental Loan Commitment”) to make incremental revolving credit loans (any Revolving Facility Increasesuch incremental revolving credit loans, the an New Revolving Credit CommitmentsIncremental Loan”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $50,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment shall not be less than $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent Agent, the Issuing Lenders and the Swingline Lender, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Commitments, Loan Commitment; (B) each Incremental Loan shall be a “Revolving Credit Loan” for all purposes hereof and shall be subject to the same terms and conditions as applicable; (2) the Incremental Commitments will share in Revolving Credit Loans and shall be guaranteed and secured with the Collateral other Extensions of Credit on a pari passu basis; ; (3C) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Commitments, Lenders providing such Credit Loans) in accordance with their revised Revolving Credit Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loans) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as applicable, if such reallocation were a repayment); (D) such Incremental Loan Commitments shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such applicable Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.25, and for 4.13); and (E) the avoidance of doubt, this Section 2.25 Borrower shall supersede deliver or cause to be delivered any provisions other documents reasonably requested by the Administrative Agent in Section 10.7 or 10.1 to the contraryconnection with any such transaction. (gb) On any Increased Amount Date on which any Incremental Loan Commitment becomes effective, each Incremental Lender with an Incremental Loan Commitment shall become a Lender hereunder with respect to such Incremental Loan Commitment. Thereafter it shall be entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and shall be included in any determination of the Required Lenders. The Loans and Commitments extended or established pursuant to Incremental Lenders will not constitute a separate voting class for any purposes under this paragraph shall constitute Loans and Commitments under, and shallAgreement.

Appears in 1 contract

Sources: Credit Agreement (Apogee Enterprises, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect and the Person appointed by the Borrower to arrange Incremental Loan Commitments (such Person (who may be (i) the Administrative Agent, if it so agrees or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) prior to the Revolving Termination Date, one or more increases in new commitments for new Term Loans which may be of the amount same Class as any outstanding Class of Revolving Commitments Term Loans or a new Class of Term Loans (a the Revolving Facility IncreaseIncremental Term Loan Commitments), ) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Incremental Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Incremental Revolving Credit Commitments, collectively with any New Revolving Credit Incremental Term Loan Commitments, the “Incremental Loan Commitments”). Each Incremental Commitment shall be , in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, exceed the Incremental Commitments shall not exceed, Loan Amount (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each caseRevolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25available); provided that Incremental Loan Commitments may be incurred in no event the Available Currency or an alternative currency pursuant to procedures and on terms to be agreed with the applicable Incremental Arranger. The Incremental Arranger shall the New Revolving Credit Commitments exceed $30,000,000. Each promptly deliver a copy of such notice to each of the Lenders. Such notice shall specify set forth (Ai) the date amount of the Incremental Loan Commitments being requested (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be in minimum increments of, $1,000,000 and a date after minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Incremental Arranger in its reasonable discretion), or such lesser amount equal to the Incremental Loan Amount at such time), (i) the date on which such notice is delivered Incremental Loan Commitments are requested to become effective (which shall not be less than five Business Days (or such shorter period as agreed by the Incremental Arranger) after the date of such notice) and (i) whether such Incremental Loan Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make Loans with terms different from such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject only to the Administrative Agent satisfaction of the terms and conditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (1) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class and (B1) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the identity Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (A) (1) each existing Lender or other Person that is an Assignee (each, a “New Incremental Revolving Credit Lender” or “New Term Lender,” as applicable) Lender of such Class shall make its Commitment available to whom the Borrower proposes (when borrowed, an “Incremental Revolving Loan” and collectively with any portion Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (1) each Incremental Commitments, be allocated Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the amounts Incremental Revolving Loans of such allocationsClass made pursuant thereto. (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that (wi) any Lender approached the Borrower and the Administrative Agent shall have consented to provide all or a portion such additional banks, financial institutions and other institutional lenders to the extent the consent of the Incremental Commitments may elect Borrower or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to as applicable, would be unreasonably withheld) to such Person’s providing such Incremental Commitments required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent, the Issuing Lender and Swingline Lender would Agent shall not be required under Section 10.6 for with respect to an assignment additional bank, financial institution, or other institutional lender that is an Affiliate of Loans a Lender or Commitments to such Persona Related Fund), (yii) with respect to New Incremental Term Loan Commitments, any Affiliated Lender providing a New an Incremental Term Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) 9.04 as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (ziii) Affiliated Lenders may not provide New Incremental Revolving Credit Commitments. Such The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent and the Incremental Arranger an Incremental Loan Assumption Agreement and such other documentation as the Incremental Arranger shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The Other Loans and any Incremental Revolving Credit Commitments providing for Incremental Revolving Loans that are Other Loans (such commitments, “Other Revolving Credit Loan Commitments” and such loans, “Other Revolving Credit Loans”) (i) shall become effectivehave fees and margin and/or interest rate determined by the Borrower and the Incremental Lenders providing such Loans, as (i) shall rank pari passu in right of payment with the Loans or Commitments existing prior the incurrence of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Other Loans and Other Revolving Credit Loan Commitments will share in and be secured by the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); basis and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of Incremental Term Loans, (x) may participate on a Term Loan Increasepro rata basis, less than pro rata basis or greater than pro rata basis in any New mandatory prepayment of Term Loans shall be on the same terms and pursuant to the same documentation as the (except that, unless otherwise permitted under this Agreement, such Incremental Term Loans increased thereby may not participate on a greater than pro rata basis as compared to any earlier maturing Class of Term Loans) and (By) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any voluntary prepayment of Term Loans and (A) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Incremental Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwiseLoans, (1x) shall provide that the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Incremental Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of the Incremental Revolving Termination Date Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3y) below)) of Loans with respect to New Incremental Revolving Credit Commitments after the associated Increased Amount Incremental Facility Closing Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not more than a pro rata basis) with all other Revolving Credit Commitments then existing on the Incremental Facility Closing Date and (y) may provide that the permanent repayment of Revolving Credit Loans with respect to, and termination or reduction of, Incremental Revolving Credit Commitments after the associated Incremental Facility Closing Date be made on a pro rata basis, less than pro rata basis or greater than pro rata basisbasis with all other Revolving Credit Commitments. Without the prior written consent of the Administrative Agent, (A) in the final maturity date of any voluntary or mandatory prepayments of Other Loans that are Term Loans hereunder(the “Other Term Loans”), as specified in shall be no earlier than the Initial Term Loan Maturity Date, (B) the final maturity date of any Other Revolving Credit Loans or Other Revolving Credit Loan Commitments shall be no earlier than the 2027 Revolving Facility Maturity Date, (C) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans, (D) the All-In Yield applicable to the Other Loans shall be determined by the Borrower and the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility Lenders and shall be adjusted to be equal to the set forth in each applicable interest rate relating to such New Term Incremental Loan minus 50 basis pointsAssumption Agreement; provided, furtherhowever, that in determining on or prior to the date that is 12 months from the Funding Date, the All-In Yield applicable to such applicable interest ratesOther Term Loans of the same currency as the Initial Term Loans (other than Other Term Loans (w) Incurred pursuant to Section 4.04(a) of Annex I, Section 4.04(b)(1)(B)(y) of Annex I, (x) original issue discount having a maturity date that is more than two years after the Initial Term Loan Maturity Date or upfront fees (but exclusive of any arrangement, structuring y) Incurred in connection with an acquisition or other fees Investment) shall not be greater than the applicable All-In Yield payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower pursuant to the Lenders under terms of this Agreement as amended through the New date of such calculation with respect to the Initial Term Loan and such initial Term Facility in Loans plus 75 basis points per annum unless the initial primary syndication thereof shall be included and equated to interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor or Adjusted Term SOFR floor) with original issue discount being equated respect to interest based such Loans is increased so as to cause the then applicable All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the Other Term Loans minus 75 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of an assumed four-year life Adjusted LIBO Rate floor, Adjusted Term SOFR floor or an Alternate Base Rate floor on any Other Term Loans shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Adjusted LIBO Rate floor, Adjusted Term SOFR floor or Alternate Base Rate floor, as applicable, applicable to maturitysuch Loan, (y) through an increase in the Applicable Margin for such Loan or (z) any combination of (x) and (y) any amendments to above and (E) the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) other terms and documentation in respect of such New Other Loans (except for covenants or other provisions (i) conformed (or added) in the Loan Documents pursuant to the related Incremental Loan Assumption Agreement for the benefit of all of the Lenders; provided that (x) in the case of any Class of Incremental Term Loans and Incremental Term Loan includes an interest rate floor greater than Commitments, “soft-call” provisions may be added solely for the interest rate floor benefit of the Term Lenders and (y) in the case of any Class of Incremental Revolving Loans and Incremental Revolving Credit Commitments, financial maintenance covenants may be added solely for the benefit of the Revolving Credit Lenders or (ii) applicable only to such initial Term Facility, such increased amount shall periods after the Latest Maturity Date as of the Incremental Facility Closing Date (collectively the “Additional Covenants”) which may be equated to interest rate for purposes added without the consent of determining whether an increase to the applicable interest margin under the initial Term Facility shall be requiredany other party)), to the extent an increase not consistent with the Term Facilities or the Revolving Credit Facilities, as applicable, shall be reasonably satisfactory to the Incremental Arranger; provided that such other terms and documentation shall be deemed to be reasonably satisfactory to such Incremental Arranger if they reflect market terms and conditions (taken as a whole) at the time of incurrence of such Other Loans (as determined by the Borrower in good faith)). The Incremental Arranger shall promptly notify each Lender that has Incremental Loan Commitments and the interest rate floor Borrower as to the effectiveness of each Incremental Loan Assumption Agreement and each such effective Incremental Loan Assumption Agreement may be provided to the Lenders and the Administrative Agent. Notwithstanding anything in such Term Facility would cause an increase in Section 9.08 to the interest rate then in effect thereundercontrary, and in such case each of the interest rate floor parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, (i) this Agreement shall be deemed amended to the extent (but not only to the interest rate marginextent) applicable necessary to such Term Facility shall be increased by such increased amount; (vii) reflect the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right existence and terms of payment with existing Term Loans and Revolving Credit Loans the Incremental Loan Commitment and the liens securing Incremental Loans evidenced thereby including the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. Additional Covenants, (fii) Each each Incremental Joinder Loan Assumption Agreement may, without the consent of any other LendersLoan Party, Agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent applicable Incremental Arranger and the Borrower Borrower, to effect the provisions of this Section 2.252.22, including to effect technical and corresponding amendments to this Agreement and the other Loan Documents and (iii) at the option of the Borrower in consultation with the applicable Incremental Arranger, incorporate terms that would be favorable to existing Lenders of the applicable Class or Classes for the benefit of such existing Lenders of the applicable Class or Classes, in each case under this clause (iii), so long as the applicable Incremental Arranger reasonably agrees that such modification is favorable to the applicable Lenders. Incremental Loans and Other Loans shall rank pari passu in right of payment and security (but without regard to the control of remedies) with the other Obligations under this Agreement, shall not at any time be guaranteed by any Subsidiary of the Borrower other than Subsidiaries that are Guarantors, and for the avoidance obligations in respect thereof shall not be secured by any property or assets of doubt, this Section 2.25 shall supersede the Borrower or any provisions in Section 10.7 or 10.1 to Restricted Subsidiary other than the contraryCollateral. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Refinancing Amendment to Credit Agreement (Altice USA, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more establishment of increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, an “Incremental Loan Commitment”) for the “New advancing of incremental Loans under the Revolving Credit CommitmentsFacility (each such advance of Loans under the Incremental Loan Commitment, an “Incremental Loan”), ; provided that (Ca) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the total aggregate principal amount of all such Incremental Loan Commitments shall not (as of any Incremental Notes, date of incurrence thereof) exceed an amount equal to the result of (i) $100,000,000 plus 225,000,000.00 minus (yii) an additional the aggregate amount of Indebtedness incurred pursuant to Section 9.3(f), and (b) the minimum principal amount of each such Incremental Commitments so long as in Loan Commitment shall not be less than $25,000,000.00 or, if less, the case of this remaining amount permitted pursuant to the foregoing clause (ya), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent (or such shorter period acceptable to the Administrative Agent Agent). The Borrower may invite existing Lenders, any Affiliate of any Lender and/or any Approved Fund, and/or any other Eligible Assignee reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swing Loan Lender and (B) the identity of Issuing Lender shall consent to each existing Incremental Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes providing any portion of an Incremental Loan Commitment (such consent not to be unreasonably withheld). Any proposed Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender offered or approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (a) any Incremental Loan Commitment, (b) the making of any Incremental Loans pursuant thereto on the applicable Increased Amount Date and (c) any Permitted Acquisition consummated in connection therewith; (ii) the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the Maximum Consolidated Leverage Ratio based on the financial statements most recently delivered pursuant to Section 8.1 both before and after giving effect (on a pro-forma basis) to (a) any Incremental Loan Commitment, (b) the making of any Incremental Loans pursuant thereto on the applicable Increased Amount Date and (c) any Permitted Acquisition consummated in connection therewith; (iii) each of the representations and warranties contained in Article 7 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to a Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (iv) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental CommitmentsLoan Commitments and Incremental Loans) reasonably requested by Administrative Agent in connection with any such transaction; and (v) each proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement. (b) Each Incremental Loan Commitment (and Incremental Loan) shall (i) constitute Obligations of the Borrower and, as applicable; (2) to the Incremental Commitments will share in extent the Collateral other Obligations are guaranteed, shall be guaranteed with the other Obligations on a pari passu basis; , and (3ii) be part of the Incremental Commitments, as applicableRevolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be effected pursuant entitled to one or more Joinder Agreements (eachfees, an “Incremental Joinder Agreement”) executed and delivered by in each case at the Borrower, rate applicable to the New Revolving Credit Lender or New Term Lender, as applicableFacility, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall otherwise be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing same terms and conditions, (a) each of conditions as the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating theretoFacility. (c) Any New Term Loans or New Revolving Loans effected through Unless otherwise agreed by the establishment applicable Incremental Lenders (provided that no such agreement shall allow the Incremental Loan Commitments to be terminated prior to termination of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New the existing Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to each Incremental Loan shall receive proceeds of prepayments on the satisfaction of same basis as the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loansoriginal aggregate funded amount thereof). (d) The outstanding Revolving Credit Loans and Ratable Shares of Swing Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent shall notify Lenders promptly upon receipt of on the Borrower’s notice of each applicable Increased Amount Date and in respect thereof (x) among the tranche of New Lenders to the Revolving Credit Commitments Facility (including the Incremental Lenders providing Incremental Loan Commitments) in accordance with their revised Ratable Shares (and the New Lenders to the Revolving Credit Facility (including the Incremental Lenders of providing Incremental Loan Commitments) agree to make all payments and adjustments necessary to effect such tranche or the tranche of New Term Commitments reallocation and the New Term Lenders of Borrower shall pay any and all costs required pursuant to Section 5.10 in connection with such tranche, reallocation as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in if such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25reallocation were a repayment). (e) The terms, provisions and documentation of the New Term Loans and New Term Incremental Loan Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and effected pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.10, and without the consent of any other Lenders. (f) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for the avoidance of doubt, any purposes under this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contraryAgreement. (g) The Loans On each Increased Amount Date, subject to the foregoing terms and Commitments extended or established pursuant conditions, each Incremental Lender with an Incremental Loan Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to this paragraph shall constitute Loans and Commitments under, and shallsuch Incremental Loan Commitment.

Appears in 1 contract

Sources: Revolving Credit Facility (Factset Research Systems Inc)

Incremental Loans. (a) At any time or from time to time after After giving effect to, and by virtue of, Amendment No. 1, the Closing Borrower and the Tranche B Revolving Lenders have established the Tranche B Revolving Commitments on the terms set forth in Amendment No. 1 utilizing $41,470,588.23 of the $75,000,000 under clause (x) of the definition of Maximum Incremental Facilities Amount. After the Amendment No. 1 Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of any-then existing Tranche of Revolving Commitments (each increase in Commitment pursuant to this sentence, a “Supplemental Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan IncreaseCommitment”) or a separate tranche of new term loans (collectively with any Term Loan Increasehereunder, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is for all such Supplemental Revolving Commitments not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to of, at the contrary hereintime the respective Supplemental Revolving Commitments become effective, the Maximum Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities Amount after giving effect to such Incremental Commitments Amendment No. 1 and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New establishment of the Tranche B Revolving Credit Commitments exceed $30,000,000Commitments. Each such notice relating to Supplemental Revolving Commitments shall specify (Ai) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental the Supplemental Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as the Administrative Agent may agree) after the date on which such notice is delivered to the Administrative Agent and (Bii) if applicable, the identity Tranche (or Tranches) of each existing Lender or other Person that is an Assignee Revolving Commitments to be so increased (eachand, a “New if more than one Tranche of Revolving Credit Lender” or “New Term Lender,” as applicable) Commitments will be increased, the amount of the aggregate Supplemental Revolving Commitment to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of to each such allocationsTranche); provided provided, that (wx) any Lender offered or approached to provide all or a portion of the Incremental any Supplemental Revolving Commitments may elect or decline, in its sole discretion, to provide such Supplemental Revolving Commitments, and (y) any Person that the Borrower proposes to become a New Lender, if such Person is not then a Lender, must be an Incremental Commitment (it being understood that there is no obligation Eligible Assignee and must be reasonably acceptable to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, and to the extent its consent would be required to assign Loans to any such Eligible Assignee, each Issuing Lender and the Swingline Lender shall have consented Lender. (such consent not to be unreasonably withheldb) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Such Tranche B Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such the Amendment No. 1 Effective Date pursuant to the terms of Amendment No. 1. Such Supplemental Revolving Commitments shall become effective as of the applicable Increased Amount Date; provided that provided, that: (1i) no Default or Event of Default shall exist on such Increased Amount Date immediately after giving effect to such Incremental CommitmentsSupplemental Revolving Commitments and the making of any New Loans pursuant thereto and any transaction consummated in connection therewith subject to the Permitted Acquisition Provisions (as defined below) and the Limited Condition Acquisition Provision, as applicable; in connection with any acquisition or investment being made with the proceeds thereof; (2ii) the Incremental proceeds of any Supplemental Revolving Commitments will share shall be used, at the discretion of the Borrower, for any purpose not prohibited by this Agreement; (iii) the Supplemental Revolving Commitments shall benefit, ratably with the other Commitments in the same Tranche, from the guarantees under the Guarantee and Collateral Agreement and shall only be guaranteed by the Guarantors; (iv) the Supplemental Revolving Commitments shall be secured by the Liens on the Collateral on a pari passu basis; basis with the Liens securing all other Obligations and the Obligations with respect to the Supplemental Revolving Commitments shall have the same payment priority as the other Obligations in the same Tranche; (3v) the Incremental Commitmentsconditions set forth in Section 2.34 shall be satisfied, if applicable; (vi) (A) the maturity date of such Supplemental Revolving Commitment shall be the Revolving Termination Date of the Tranche being so increased, (B) such Supplemental Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to such Revolving Termination Date and (C) such Supplemental Revolving Commitment shall be on the same terms as the Tranche being so increased (other than with respect to upfront fees) and pursuant to the same documentation applicable to such Tranche; (vii) such Supplemental Revolving Commitments shall be effected in accordance with Section 2.25(e); and (viii) to the extent reasonably requested by the Administrative Agent, the Borrower shall deliver or cause to be delivered (A) customary legal opinions with respect to the due authorization, execution and delivery by the Borrower and each other Loan Party to be party thereto and the enforceability of the applicable Increase Supplement or Lender Joinder Agreement, as applicable, shall the non-conflict of the execution, delivery of and performance of payment obligations under such documentation with this Agreement and with the organizational documents of the Loan Parties and the effectiveness of the Guarantee and Collateral Agreement to create a valid security interest, and the effectiveness of specified other Security Documents to perfect such security interests, in specified Collateral to secure the Obligations, including the Supplemental Revolving Commitments and the extensions of credit thereunder, (B) certified copies of the resolutions or other applicable corporate action of each applicable Loan Party approving its entry into such documents and the transactions contemplated thereby and (C) customary reaffirmation agreements and/or such amendments, supplements or modifications to the Security Documents as may be effected pursuant reasonably necessary or advisable to one ensure that each New Lender is provided with the benefits of the applicable Loan Documents and each then existing Secured Party continues to be provided with the benefit of the applicable Loan Documents. Notwithstanding anything to the contrary above, in connection with the incurrence of any Supplemental Revolving Commitment, if the proceeds of such Supplemental Revolving Commitment are, substantially concurrently with the receipt thereof, to be used, in whole or more Joinder Agreements (eachin part, an “Incremental Joinder Agreement”) executed and delivered by the BorrowerBorrower or any Restricted Subsidiary to finance, the New Revolving Credit Lender in whole or New Term Lenderin part, as applicablea Permitted Acquisition, and then to the extent applicableso required by the applicable New Lenders, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Increased Amount Date shall be (x) the Specified Representations (conformed as necessary for such Permitted Acquisition) and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Holdings or the Borrower (or any Affiliate of Holdings or the Borrower) has the right to terminate the obligations of Holdings, the Administrative Agent Borrower or such Affiliate under such acquisition agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement and the Issuing Lender and the Swingline Lender, (B) there need not be a condition to borrowing that there be no Default or another form Event of incremental amendment, each of which Default other than there shall be recorded in the Register; no Event of Default under Sections 8.1(a) or (4f) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and incurrence (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender“Permitted Acquisition Provisions”). (bc) On any Increased Amount Date date on which New Revolving Credit Commitments are effected through a Revolving Facility Increaseany Incremental Commitment becomes effective, subject to the satisfaction of the foregoing terms and conditions, each lender with an Incremental Commitment (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenderseach, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term LoanLender”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term LoansCommitment. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) For purposes of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan IncreaseAgreement, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; providedRevolving Loans or Revolving Commitments, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) respectively. Each Incremental Joinder Agreement Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the Borrower Administrative Agent, to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (ge) The Loans Supplemental Revolving Commitments related to existing Tranche(s) of Revolving Commitments at such time shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit L-1 (the “Increase Supplement”) and by each New Lender (if not already a Lender) substantially in the form attached hereto as Exhibit L-2 (the “Lender Joinder Agreement”), as the case may be, or, in each case, such other form as may be reasonably acceptable to the Administrative Agent and the Borrower, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement or Increase Supplement, as applicable, each New Lender shall be a Lender for all intents and purposes of this Agreement and the commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments extended or established of such increased Tranche. (f) Upon the effectiveness of each Supplemental Revolving Commitment pursuant to this paragraph shall constitute Loans Section 2.25, (i) each Lender under the applicable Tranche immediately prior to such increase will automatically and Commitments underwithout further act be deemed to have assigned to each New Lender providing a portion of such Supplemental Revolving Commitment, and shalleach such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche such that, after giving effect to such Supplemental Revolving Commitment and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche held by each Lender (including each such New Lender) will equal such Lender’s Tranche Revolving Percentage thereof and (ii) if, on the date of such Supplemental Revolving Commitment, there are any Revolving Loans outstanding under such Tranche, such Revolving Loans shall on or prior to the effectiveness of such Supplemental Revolving Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Supplemental Revolving Commitment), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11.

Appears in 1 contract

Sources: Asset Based Revolving Credit Agreement (Revlon Consumer Products Corp)

Incremental Loans. (a) At any time or from time to time after the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect from time to time, request (A) prior Incremental Commitments in an amount not to exceed the Revolving Termination Date, Incremental Loan Amount determined as of the date of such request from one or more increases in Incremental Lenders, which may include any existing Lender; provided that each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of Revolving the Incremental Commitments being requested (which shall be in minimum increments of $1,000,000 and a “Revolving Facility Increase”minimum amount of $25,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (Bii) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such Incremental Commitments are requested to become effective (which shall not be less than 10 Business Days (or such shorter period as the Administrative Agent and the relevant Incremental Lenders may agree) nor more than 60 days after the date of such notice), and (iii) whether such Incremental Commitments are commitments to make additional Loans or commitments to make loans with terms different from the Loans (“Other Loans”), in which case such notice is delivered shall specify the terms of such Other Loans. (b) The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement, an Incremental Joinder Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of each Incremental Lender. Each Incremental Loan Assumption Agreement shall specify the terms of the Incremental Loans to be made thereunder; provided that, without the prior written consent of the Majority Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, (ii) the Average Life of any Other Loans shall be no shorter than the Average Life of the Loans, (iii) if the yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the interest rate per annum applicable to such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the Average Life of such Other Loans and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans four and (z) Affiliated any transaction fees, commitment fees, exit fees (other than any prepayment premium) or other similar fees payable in respect of the Other Loans and the fair market value of any warrants, options, stock or other non-cash consideration payable in respect thereof) exceeds the Applicable Rate by more than 25 basis points (the amount of such excess above the Applicable Rate being referred to herein as the “Yield Differential”), then the Applicable Rate shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans and (iv) if the optional prepayment of such Other Loans during any period is subject to a prepayment premium that would exceed the Applicable Prepayment Premium in respect of the Loans during such period (without regard to the amount of any Applicable Prepayment Premium applicable to the Loans in prior periods) by more than 25 basis points, then the Applicable Prepayment Premium shall be increased by an amount equal to the amount by which such prepayment premium exceeds the Applicable Prepayment Premium in respect of the Loans. The other terms of the Incremental Loans and the Incremental Loan Assumption Agreement, to the extent not consistent with the terms applicable to the Loans hereunder, shall otherwise be reasonably satisfactory to the Administrative Agent and, to the extent that such Incremental Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower and the Restricted Subsidiaries or are more favorable to the Lenders may not provide New Revolving Credit Commitmentsmaking such Other Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Loan Assumption Agreement. Such The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Commitments Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment and the Incremental Loans evidenced thereby. (c) Notwithstanding the foregoing, no Incremental Commitment shall become effectiveeffective under this Section 2.08 unless (i) at the time thereof and after giving effect thereto, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitmentshave occurred and be continuing, (ii) except as applicable; (2) the Incremental Commitments will share otherwise specified in the Collateral on a pari passu basis; (3) the applicable Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Loan Assumption Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, shall have received (with sufficient copies for each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 6.01 and (5iii) the Borrower shall pay, or cause to be paid, all fees and an expenses owing in respect of such Incremental Loans Commitment to the Administrative Agent, the Collateral Agent and the Lenders shall have been paid. (d) To the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 3.01(a) required to be made after the making of such Incremental Loans shall be ratably increased to provide for the pro rata payment of the principal of such Incremental Loans. (e) The Borrower hereby agrees that if the Borrower obtains commitments from any bank or financial institution (other than any Defaulting Initial Lender) to provide Incremental Commitments (the “Proposed Incremental Commitments”). (b) On any Increased Amount Date , the Borrower shall, without regard to whether the terms on which New Revolving Credit such Proposed Incremental Commitments are effected through a Revolving Facility Increaseoffered to it by any such institution are more or less favorable to it than any previously offered by the Initial Lenders, subject provide written notice thereof (an “Incremental Offer Notice”) to the satisfaction Initial Lenders setting forth such terms and shall offer the Initial Lenders the right (a “Participation Right”) to provide (on such terms) the portion of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order Proposed Incremental Commitments that, after giving effect to the provision of the Proposed Incremental Commitments and the making of the Incremental Loans thereunder, would result in the Initial Lenders (taken together) holding Loans representing no less than 51% of the outstanding principal amount of all Loans. Within three Business Days following receipt of such assignments and purchasesnotice, one or more Initial Lenders shall provide written notice to the Borrower in the event that such Initial Lenders elect to exercise such Participation Right (in whole or in part). If any Initial Lender elects to exercise such Participation Rights through one or more of its Affiliates or Approved Funds, the portion of the Proposed Incremental Commitments to be provided by such Initial Lender shall be allocated among such Affiliates or Approved Funds as such Initial Lender shall designate to the Borrower in writing. If the Initial Lenders elect not to exercise all or any portion of such Participation Right to provide the Proposed Incremental Commitments, such Revolving Proposed Incremental Commitments and Incremental Loans will to be held made thereunder and the portion of the Proposed Incremental Commitments and Incremental Loans not subject to such Participation Right shall be made by existing Revolving the bank or other financial institutions that originally agreed to make such Proposed Incremental Loans, in each case on terms no more favorable to such Incremental Lenders and New Revolving Credit Lenders ratably than those specified in accordance with their Revolving Commitments the Incremental Offer Notice, on or before the date that is 60 days after the date on which the Initial Lender’s right to exercise the Participation Right expired. For the avoidance of doubt, the Borrower shall not be obligated to offer any Participation Right to the Initial Lenders, if, after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction provision of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Proposed Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders making of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving CommitmentsIncremental Loans thereunder, in each case subject by one or more other Incremental Lenders, the Initial Lenders would nevertheless hold Loans representing at least 51% of the outstanding principal amount of all Loans. The acceptance or rejection of any offer to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Initial Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of the Proposed Incremental Commitments contemplated by any Incremental Offer Notice shall not operate as a waiver or affect in any other manner such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase party’s rights hereunder in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent respect of any other Lenders, effect such amendments to this Agreement and Incremental Offer Notice or the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contraryProposed Incremental Commitments contemplated thereby. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Atp Oil & Gas Corp)

Incremental Loans. (a) At any time or Each Lender hereby agrees to provide a Commitment to the Borrower to make Revolving Loans from time to time and after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases Incremental Amendment Effective Date in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be U.S. Dollars in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything equal to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to opposite such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist Lender’s name on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements Schedule I attached hereto (each, an “Incremental Joinder Agreement”) executed and delivered by the BorrowerCommitment” and, collectively, the New Revolving ” Incremental Commitments”), on the terms set forth herein and in the Credit Lender or New Term Lender, Agreement (as applicableamended hereby), and subject to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which conditions set forth herein. The Incremental Commitments shall be recorded deemed to be “Commitments” as defined in the Register; Credit Agreement (4as amended hereby) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing for all purposes of the maximum amount of Loans available under Loan Documents having terms and provisions identical to those applicable to the Facilities after giving effect Commitments outstanding immediately prior to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and Amendment Effective Date (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender“Existing Revolving Commitments”). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Each Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender confirms that a copy of the Credit Agreement and the other applicable Loan Documents, together with copies of the financial statements referred to therein and such tranche shall other documents and information as it has deemed appropriate to make a Loan its own credit analysis and decision to the Borrower (a “New Term Loan”) in enter into this Amendment and make an amount equal Incremental Commitment, have been made available to its New Term Commitment of such tranche, and Lender; (ii) each New Term agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender of or agent and based on such tranche documents and information as it shall become a Lender hereunder with respect deem appropriate at the time, continue to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to own credit decisions in taking or not taking action under the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche Agreement or the tranche of New Term Commitments other applicable Loan Documents, including this Amendment; and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in appoints and authorizes the case of a Term Loan Increase, any New Term Loans shall be Administrative Agent to take such action as agent on the same terms its behalf and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing exercise such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders powers under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of are delegated to the Administrative Agent and by the Borrower to effect the provisions of this Section 2.25terms thereof, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrarytogether with such powers as are reasonably incidental thereto. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Landsea Homes Corp)

Incremental Loans. (a) At any time or from time to time after the Closing Effective Date and prior to the Facility Termination Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, establishment of one or more increases in the amount of Aggregate Commitment (any such increase, an “Incremental Revolving Commitments Credit Commitment”) to make revolving credit loans under the Revolving Credit Facility (a any such increase, an Incremental Revolving Facility Credit Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such increases during the term of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 this Agreement shall not exceed $200,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Increase shall not be less than $15,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Revolving Credit Increase shall be effective. The Borrower may invite any Lender, which shall be a date after the date on which such notice is delivered any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New an “Incremental Lender”). Any Incremental Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1a) no Unmatured Default or Event of Default shall exist on such Increased Amount Date; (b) each of the representations and warranties contained in Article 5 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date after giving with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) as of such earlier date); (c) in the case of each Incremental Revolving Credit Increase: (i) the outstanding Revolving Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental Commitments, as applicable; Revolving Credit Increase) in accordance with their revised Pro Rata Share (2) and the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to ‎Section 3.04 in connection with such reallocation as if such reallocation were a repayment); and (ii) such Incremental Revolving Credit Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Lender Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such applicable Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (bwhich Lender Joinder Agreement(s) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.22); (d) No existing Lender shall be obligated to participate in any Incremental Revolving Credit Increase, and for the avoidance of doubt, this Section 2.25 each Lender’s decision to provide (or not provide) an Incremental Revolving Credit Commitment in any instance shall supersede any provisions be made in Section 10.7 or 10.1 to the contrarysuch L▇▇▇▇▇’s sole and absolute discretion in each case. (ge) The Loans On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and Commitments extended or established pursuant to this paragraph conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall constitute Loans and Commitments under, and shallbecome a Lender hereunder.

Appears in 1 contract

Sources: Credit Agreement (GXO Logistics, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect and the Person appointed by the Borrower to arrange Incremental Loan Commitments (such Person (who (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) prior to the Revolving Termination Date, one or more increases in new commitments for new Term Loans which may be of the amount same Class as any outstanding Class of Revolving Commitments Term Loans or a new Class of Term Loans (a the Revolving Facility IncreaseIncremental Term Loan Commitments), ) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Incremental Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Incremental Revolving Credit Commitments, collectively with any New Revolving Credit Incremental Term Loan Commitments, the “Incremental Loan Commitments”). Each Incremental Commitment shall be , in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, exceed the Incremental Commitments shall not exceed, Loan Amount (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each caseRevolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Credit Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25available); provided that Incremental Loan Commitments may be incurred in no event the Available Currency or an alternative currency pursuant to procedures and on terms to be agreed with the applicable Incremental Arranger. The Incremental Arranger shall the New Revolving Credit Commitments exceed $30,000,000. Each promptly deliver a copy of such notice to each of the Lenders. Such notice shall specify set forth (Ai) the date amount of the Incremental Loan Commitments being requested (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be in minimum increments of, $1,000,000 and a date after minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Incremental Arranger in its reasonable discretion), or such lesser amount equal to the Incremental Loan Amount at such time), (ii) the date on which such notice is delivered Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days (or such shorter period as agreed by the Incremental Arranger) after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make Loans with terms different from such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject only to the Administrative Agent satisfaction of the terms and conditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (A) (1) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class and (2) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (B) the identity of (1) each existing Lender or other Person that is an Assignee (each, a “New Incremental Revolving Credit Lender” or “New Term Lender,” as applicable) Lender of such Class shall make its Commitment available to whom the Borrower proposes (when borrowed, an “Incremental Revolving Loan” and collectively with any portion Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (2) each Incremental Commitments, be allocated Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the amounts Incremental Revolving Loans of such allocationsClass made pursuant thereto. (a) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that (wi) any Lender approached the Borrower and the Administrative Agent shall have consented to provide all or a portion such additional banks, financial institutions and other institutional lenders to the extent the consent of the Incremental Commitments may elect Borrower or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to as applicable, would be unreasonably withheld) to such Person’s providing such Incremental Commitments required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent, the Issuing Lender and Swingline Lender would Agent shall not be required under Section 10.6 for with respect to an assignment additional bank, financial institution, or other institutional lender that is an Affiliate of Loans a Lender or Commitments to such Persona Related Fund), (yii) with respect to New Incremental Term Loan Commitments, any Affiliated Lender providing a New an Incremental Term Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) 9.04 as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (ziii) Affiliated Lenders may not provide New Incremental Revolving Credit Commitments. Such The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent and the Incremental Arranger an Incremental Loan Assumption Agreement and such other documentation as the Incremental Arranger shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The Other Loans and any Incremental Revolving Credit Commitments providing for Incremental Revolving Credit Loans that are Other Loans (such commitments, “Other Revolving Credit Loan Commitments” and such loans, “Other Revolving Credit Loans”) (i) shall become effectivehave fees and margin and/or interest rate determined by the Borrower and the Incremental Lenders providing such Loans, as (ii) shall rank pari passu in right of payment with the Loans or Commitments existing prior the incurrence of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Other Loans and Other Revolving Credit Loan Commitments will share in and be secured by the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); basis and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (yiii)(A) in the case of each notice Incremental Term Loans, (x) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any mandatory prepayment of Term Loans (except that, unless otherwise permitted under this Agreement, such Incremental Term Loans may not participate on a greater than pro rata basis as compared to any Revolving Lender with respect to an increase earlier maturing Class of Term Loans) and (y) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) any voluntary prepayment of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Incremental Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwiseLoans, (1x) shall provide that the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Incremental Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of the Incremental Revolving Termination Date Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3y) below)) of Loans with respect to New Incremental Revolving Credit Commitments after the associated Increased Amount Incremental Facility Closing Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not more than a pro rata basis) with all other Revolving Credit Commitments then existing on the Incremental Facility Closing Date and (y) may provide that the permanent repayment of Revolving Credit Loans with respect to, and termination or reduction of, Incremental Revolving Credit Commitments after the associated Incremental Facility Closing Date be made on a pro rata basis, less than pro rata basis or greater than pro rata basisbasis with all other Revolving Credit Commitments. Without the prior written consent of the Administrative Agent, (A) in the final maturity date of any voluntary or mandatory prepayments of Other Loans that are Term Loans hereunder(the “Other Term Loans”) shall be no earlier than the Initial Term Loan Maturity Date, (B) the final maturity date of any Other Revolving Credit Loans or Other Revolving Credit Loan Commitments shall be no earlier than the Maturity Date (as specified defined in the Seventh Incremental Assumption and Refinancing Agreement), (C) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the 2016 Extended Term Loans, (D) the All-In Yield applicable to the Other Loans shall be determined by the Borrower and the applicable Incremental Joinder Lenders and shall be set forth in each applicable Incremental Loan Assumption Agreement; ; provided, however, that the All-In Yield applicable to such Other Term Loans of the same currency as the 2016 Extended Term Loans (viother than Other Term Loans (w) Incurred pursuant to Section 4.04(b)(1)(ii) of A▇▇▇▇ ▇, (x) established pursuant to the second proviso to Section 4.04(b)(1) of Annex I, (y) having a maturity date that is more than two years after the 2016 Extended Term Loan Maturity Date or (z) Incurred in connection with regards to any New Term Loan, if an acquisition) shall not be greater than the applicable interest rate relating All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such New calculation with respect to the 2016 Extended Term Loan exceeds Loans plus 50 basis points per annum unless the interest rate of (together with, as provided in the initial Term Facility by more than 50 basis pointsproviso below, the applicable interest rate relating Adjusted LIBO Rate floor) with respect to such Term Facility shall be adjusted Loans is increased so as to be cause the then applicable All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the applicable interest rate relating to such New Other Term Loan Loans minus 50 basis points; providedprovided that any increase in All-In Yield to any Loan due to the application or imposition of an Adjusted LIBO Rate floor or an Alternate Base Rate floor on any Other Term Loan shall be effected, further, that in determining such applicable interest ratesat the Borrower’s option, (x) original issue discount through an increase in (or upfront fees implementation of, as applicable) any Adjusted LIBO Rate floor or Alternate Base Rate floor, as applicable, applicable to such Loan, (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loansy) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility through an increase in the initial primary syndication thereof shall be included and equated to interest rate Applicable Margin for such Loan or (with original issue discount being equated to interest based on an assumed four-year life to maturityz) any combination of (x) and (y) any amendments to above, and (E) the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) other terms and documentation in respect of such New Other Loans (except for covenants or other provisions (i) conformed (or added) in the Loan Documents pursuant to the related Incremental Loan Assumption Agreement for the benefit of all of the Lenders; provided that (x) in the case of any Class of Incremental Term Loans and Incremental Term Loan includes an interest rate floor greater than Commitments, “soft-call” provisions may be added solely for the interest rate floor benefit of the Term Lenders and (y) in the case of any Class of Incremental Revolving Loans and Incremental Revolving Credit Commitments, financial maintenance covenants may be added solely for the benefit of the Revolving Credit Lenders or (ii) applicable only to such initial Term Facility, such increased amount shall periods after the Latest Maturity Date as of the Incremental Facility Closing Date (collectively the “Additional Covenants”) which may be equated to interest rate for purposes added without the consent of determining whether an increase to the applicable interest margin under the initial Term Facility shall be requiredany other party)), to the extent an increase not consistent with the Term Facilities or the Revolving Credit Facilities, as applicable, shall be reasonably satisfactory to the Incremental Arranger; provided that such other terms and documentation shall be deemed to be reasonably satisfactory to such Incremental Arranger if they reflect market terms and conditions (taken as a whole) at the time of incurrence of such Other Loans (as determined by the Borrower in good faith)). The Incremental Arranger shall promptly notify each Lender and the interest rate floor Borrower as to the effectiveness of each Incremental Loan Assumption Agreement. Notwithstanding anything in such Term Facility would cause an increase in Section 9.08 to the interest rate then in effect thereundercontrary, and in such case each of the interest rate floor parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, (i) this Agreement shall be deemed amended to the extent (but not only to the interest rate marginextent) applicable necessary to such Term Facility shall be increased by such increased amount; (vii) reflect the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right existence and terms of payment with existing Term Loans and Revolving Credit Loans the Incremental Loan Commitment and the liens securing Incremental Loans evidenced thereby including the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. Additional Covenants, (fii) Each each Incremental Joinder Loan Assumption Agreement may, without the consent of any other LendersLoan Party, Agent or Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent applicable Incremental Arranger and the Borrower Borrower, to effect the provisions of this Section 2.252.22, including to effect technical and corresponding amendments to this Agreement and the other Loan Documents and (iii) at the option of the Borrower in consultation with the applicable Incremental Arranger, incorporate terms that would be favorable to existing Lenders of the applicable Class or Classes for the benefit of such existing Lenders of the applicable Class or Classes, in each case under this clause (ii), so long as the applicable Incremental Arranger reasonably agrees that such modification is favorable to the applicable Lenders. Incremental Loans and Other Loans shall have the same guarantees as, and for be secured on a pari passu basis with, the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contraryLoans. (b) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.22 unless on the date of such effectiveness (or earlier, as determined in accordance with Section 1.05, in the case of an Incremental Loan Assumption Agreement the primary purpose of which is to finance a Limited Condition Transaction), (i)(x) the representations and warranties set forth in Article III and in each other Loan Document shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date; provided that, with respect to any Incremental Loan Assumption Agreement the primary purpose of which is to finance a Limited Condition Transaction, a Permitted Investment or an acquisition not prohibited by this Agreement, the condition set forth in this sub-clause (i)(x) shall only be required to the extent included (and in the form set forth in) the relevant Incremental Loan Assumption Agreement (and, if included, may be waived by Incremental Lenders holding more than 50% of the applicable aggregate Incremental Loan Commitments); and (y) no Event of Default shall have occurred and be continuing; provided that (other than in the case of an Event of Default specified in Section 7.01(a) and (g)), the condition in this sub-clause (i)(y) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments undermay be waived by Incremental Lenders holding more than 50% of the applicable aggregate Incremental Loan Commitments, and shallthe Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) all fees and expenses owing to the Administrative Agent, the Incremental Arranger and the Incremental Lenders in respect of such increase shall have been paid (iii) the Incremental Arranger shall have received legal opinions addressed to the Incremental Lenders and the Incremental Arranger, board resolutions and other closing certificates reasonably requested by the Incremental Arranger and consistent with those delivered on the Funding Date under Section 4.02, other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Incremental Arranger and (iv) the Incremental Arranger shall have received reaffirmation agreements and/or such amendments to the Security Documents as may be reasonably requested by the Incremental Arranger in order to ensure that such Incremental Lenders are provided with the benefit of the applicable Loan Documents. (c) Each of the parties hereto hereby agrees that the Administrative Agent and the Incremental Arranger may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans of the same currency on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing or SOFR Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing or SOFR Borrowing

Appears in 1 contract

Sources: Credit Agreement (Optimum Communications, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect and the Person appointed by the Borrower to arrange Incremental Loan Commitments (such Person (who (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) prior to the Revolving Termination Date, one or more increases in new commitments for new Term Loans which may be of the amount same Class as any outstanding Class of Revolving Commitments Term Loans or a new Class of Term Loans (a the Revolving Facility IncreaseIncremental Term Loan Commitments), ) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Incremental Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Incremental Revolving Credit Commitments, collectively with any New Revolving Credit Incremental Term Loan Commitments, the “Incremental Loan Commitments”). Each Incremental Commitment shall be , in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, exceed the Incremental Commitments shall not exceed, Loan Amount (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each caseRevolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Credit Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25available); provided that Incremental Loan Commitments may be incurred in no event the Available Currency or an alternative currency pursuant to procedures and on terms to be agreed with the applicable Incremental Arranger. The Incremental Arranger shall the New Revolving Credit Commitments exceed $30,000,000. Each promptly deliver a copy of such notice to each of the Lenders. Such notice shall specify set forth (Ai) the date amount of the Incremental Loan Commitments being requested (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be in minimum increments of, $1,000,000 and a date after minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Incremental Arranger in its reasonable discretion), or such lesser amount equal to the Incremental Loan Amount at such time), (ii) the date on which such notice is delivered Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days (or such shorter period as agreed by the Administrative Agent Incremental Arranger) after the date of such notice), and (Biii) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of whether such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached Loan Commitments are commitments to provide all or a portion make additional Loans of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of Class which shall be recorded extended in the Register; (4) the Borrower shall a manner so as to be in pro forma compliance fungible with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount an existing Class of Loans available under hereunder or commitments to make Loans with terms different from such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the Facilities after giving effect to such Incremental Commitment, and applicable date specified in any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during Loan Assumption Agreement (the relevant determination period or simultaneously with the borrowing of the Incremental LoansFacility Closing Date”); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject only to the satisfaction of the foregoing terms and conditionsconditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (aA) (1) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Incremental Term Lender of such tranche Class shall make a Loan to the Borrower (a an New Incremental Term Loan”) in an amount equal to its New Incremental Term Loan Commitment of such tranche, Class and (ii2) each New Incremental Term Lender of such tranche Class shall become a Lender hereunder with respect to the New Incremental Term Loan Commitment of such tranche Class and the New Incremental Term Loans of such tranche Class made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments thereto and (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, B) (i1) each New Incremental Revolving Credit Lender of such tranche Class shall make its Commitment available to the Borrower (when borrowed, a an New Incremental Revolving Credit Loan” and collectively with any New Incremental Term Loan, an “Incremental Loan”) in an amount equal to its New Incremental Revolving Credit Commitment of such tranche, Class and (ii2) each New Incremental Revolving Credit Lender of such tranche Class shall become a Lender hereunder with respect to the New Incremental Revolving Credit Commitment of such tranche Class and the New Incremental Revolving Credit Loans of such tranche Class made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (da) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that (i) the Borrower and the Administrative Agent shall notify Lenders promptly upon receipt have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche Borrower or the tranche of New Term Commitments and the New Term Lenders of such trancheAdministrative Agent, as applicable, and (y) in the case would be required if such institution were receiving an assignment of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and Section 9.04 (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower shall not be required with respect to effect the provisions an additional bank, financial institution, or other institutional lender that is an Affiliate of this Section 2.25a Lender or a Related Fund), and for the avoidance of doubt(ii) with respect to Incremental Term Loan Commitments, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallAffiliated Lender providing an Incremental Term

Appears in 1 contract

Sources: Credit Agreement (Altice USA, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit incremental term loan commitments (any such new commitmentsincremental term loan commitment, collectively with any Revolving Facility Increase, the an New Revolving Credit CommitmentsIncremental Term Loan Commitment), (C) prior to the Term Maturity Date, the establishment of make one or more new additional term loan commitments loans, which may be of the same tranche as such existing the outstanding Term Loans with the latest maturity or a new tranche of Term Loans (a any such increase or additional term loan, an Incremental Term Loan”); or (ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental NotesTerm Loans, $100,000,000 plus (y) an additional amount of the “Incremental Commitments so long as in the case of this clause (yLoans ”), ; provided that (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such Incremental Loan Commitments and Incremental Loans shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $75,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $15,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to Administrative Agent (or such later date as may be approved by the Administrative Agent and (B) the identity Agent). The Borrower may invite any Lender, any Affiliate of each existing any Lender or and/or any Approved Fund, and/or any other Person that is reasonably satisfactory to the Administrative Agent, to provide an Assignee Incremental Loan Commitment (eachany such Person, a an New Revolving Credit Incremental Lender”). Any proposed Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Collateral Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 9.14 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; Confidential Portions of this Exhibit marked as [***] have been omitted pursuant to a request for confidential treatment and have been filed separately with the Securities and Exchange Commission. (C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (bF) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice to any Revolving Lender with respect to an increase in Incremental Term Loan (the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) terms of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental relevant Lender Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall):

Appears in 1 contract

Sources: Credit Agreement (STAMPS.COM Inc)

Incremental Loans. (a) At any time or from time to time after following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, establishment of one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan IncreaseCommitment”) or a separate tranche of new term to make revolving credit loans (collectively with any Term Loan Increase, under the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, Facility (the “Incremental CommitmentsLoans ). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall (i) the New total aggregate principal amount for all such Incremental Revolving Credit Commitments shall not (as of any date of incurrence thereof) exceed $30,000,00075,000,000 and (ii) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Revolving Credit Commitment 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 Agent. The Borrower may invite any Lender, any Affiliate of each existing any Lender or and/or any Approved Fund, and/or any other Person that is reasonably satisfactory to the Administrative Agent, to provide an Assignee (each, a “New Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Revolving Credit Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsRevolving Credit Commitment, as applicable; (2) the making of any Incremental Commitments will share Loans pursuant thereto, and (3) any Permitted Acquisition consummated in connection therewith; (B) the Collateral Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 8.12 based on the financial statements most recently delivered pursuant to Section 7.1(a) or 7.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) the making of any Incremental Loans pursuant thereto, and (y) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VI shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (E) each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (yF) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Incremental Revolving Credit Loans and New Revolving Credit Commitments, as Commitment (the case may be, terms of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental relevant Lender Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall):

Appears in 1 contract

Sources: Credit Agreement (SolarWinds, Inc.)

Incremental Loans. (a) At any time or from time Prior to time after the Closing Datelast day of the Term, the Borrower may Borrowing Agent may, by written notice to the Administrative Agent elect (who shall promptly notify the applicable Lenders of such request), request the establishment of: (i) one or more incremental term loan commitments (any such incremental term loan commitment, an "Incremental Term Loan Commitment") to request (A) prior make one or more term loans, including a borrowing of an additional term loan the principal amount of which will be added to the Revolving Termination Dateoutstanding principal amount of the existing tranche of Incremental Term Loans (any such additional term loan, an "Incremental Term Loan"); or (ii) one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments Commitment (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the “New an "Incremental Revolving Credit Commitments”)Commitment" and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the "Incremental Loan Commitments”). Each ") to make Revolving Advances (any such increase, an "Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase" and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstandingTerm Loans, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such "Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25Loans"); provided that in no event the total aggregate initial principal amount (as of the date of incurrence thereof) of such requested Incremental Loan Commitments and Incremental Loans shall the New Revolving Credit Commitments not exceed Three Hundred Million and 00/100 Dollars ($30,000,000. 300,000,000). (iii) Each such notice shall specify (A) the date (each, an "Increased Amount Date") on which the Borrower proposes Borrowers propose that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Agent (or such earlier date as may be approved by the Administrative Agent). (iv) The Borrowers may invite any Lender, any Affiliate of any Lender and/or any other Person, to provide an Incremental Loan Commitment, subject to the consent of the Agent and the Issuer and Swing Loan Lender, in each case, such consent not to be unreasonably withheld, to the extent such consent would be required for an assignment by such Person (Bany such Person, an "Incremental Lender"), and subject to the requirements of Section 16.3. (v) the identity of each existing Any proposed Incremental Lender offered or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans Loan Commitment or Commitments to such Person, any portion thereof. (yvi) with respect to New Term Commitments, any Affiliated Lender providing a New Term Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that, each of the following conditions has been satisfied or waived as of such Increased Amount Date: 268323208 (1A) There shall exist no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to any Incremental Loan Commitment and the making of any Incremental Loans pursuant thereto; (B) The amount of Incremental Loan requested pursuant to this Section 2.24 shall be at least Fifty Million and 00/100 Dollars ($50,000,000.00); (C) each of the representations and warranties of the Loan Parties contained in Article V of the Agreement and in the Other Documents shall be true in all material respects on and as of the date of such additional Loan or Letter of Credit with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which expressly relate solely to an earlier date or time, which representations and warranties shall be true and correct in all material respects on and as of the specific dates or times referred to therein) and the Loan Parties shall have performed and complied with all covenants and conditions hereof; (D) the proceeds of any Incremental Loans shall be used for any purpose not prohibited under this Agreement; (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrowers; (F) in the case of each Incremental Term Loan (the terms of which shall be set forth in a lender joinder agreement in form and substance satisfactory to the Agent (each, a "Lender Joinder Agreement"): (x) such Incremental CommitmentsTerm Loan will mature and, if applicable, amortize in a manner reasonably acceptable to the Incremental Lenders making such Incremental Term Loan and the Borrowers, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Term Loan Maturity Date; and (y) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the Incremental Lenders and the Borrowers on the applicable Increased Amount Date; provided, however, the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall not be higher than the Applicable Margin and pricing grid applicable to the Term Loan unless the Applicable Margin and pricing grid applicable to the Term Loan is increased to be equal to the higher Applicable Margin and pricing grid, if applicable, with respect to such Incremental Term Loan; (G) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in the relevant Lender Joinder Agreement): (x) such Incremental Revolving Credit Increase shall mature on the last day of the Term, shall bear interest and be entitled to fees (other than upfront fees), in each case at the applicable Contract Rate, and shall be subject to the same terms and conditions as applicablethe Revolving Advances; (2y) the Incremental outstanding Revolving Advances and the pro rata share of Swing Loans and the Maximum Undrawn Amount of all outstanding Letters of Credit will be reallocated by the Agent on the applicable Increased Amount Date among the Lenders holding Revolving Commitments will share in the Collateral on a pari passu basis; (3) including the Incremental CommitmentsLenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Commitment Percentages (and the Lenders holding Revolving Commitments (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all 268323208 payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs in connection with such reallocation as if such reallocation were a repayment); and (z) except as provided above, as applicableall of the other terms and conditions applicable to such Incremental Revolving Credit Increase shall, except to the extent otherwise provided in this Section 2.24, be identical to the terms and conditions applicable to the Revolving Advances; (H) any Incremental Term Loans and any Incremental Revolving Credit Commitment shall otherwise be on terms and pursuant to documentation reasonably satisfactory to the Agent and the Borrowers; (I) such Incremental Loan Commitments shall be effected pursuant to one or more Lender Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the BorrowerBorrowers, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such applicable Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Other Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.24); (J) the Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, and for without limitation, a resolution duly adopted by the avoidance board of doubtdirectors (or equivalent governing body) of each Loan Party authorizing such Incremental Loan and/or Incremental Loan Commitment), this Section 2.25 as may be reasonably requested by Agent in connection with any such transaction; (K) the Agent shall supersede any provisions in Section 10.7 or 10.1 have received, prior to the contraryconsummation of such Incremental Loan and/or Incremental Loan Commitment, such “onboarding” and tax and administrative forms that are customarily provided for new lenders in syndicated facilities; and (L) solely with respect to any Incremental Revolving Credit Commitment or Incremental Revolving Credit Increase, the Swing Loan Lender and Issuer shall have consent rights (not to be unreasonably withheld) with respect to such Incremental Lender, if such consent would be required for an assignment of Revolving Advances or Revolving Commitments, as applicable, to such Incremental Lender. (gb) The Incremental Term Loans shall be deemed to be term loans; provided that any such Incremental Term Loan that is not added to the outstanding principal balance of a pre-existing Incremental Term Loan shall be designated as a separate borrowing of Incremental Term Loans for all purposes of this Agreement. (c) The Incremental Lenders shall be included in any determination of the Required Lenders or Required Revolving Lenders, as applicable, and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and Commitments extended conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or established be obligated to make, an Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term Loan 268323208 Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to this paragraph the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall constitute Loans become a Lender hereunder with respect to such Incremental Revolving Credit Commitment. (f) On any Increased Amount Date, Borrowers shall pay all cost and Commitments underexpenses incurred by Agent and by each Incremental Lender in connection with the negotiations regarding, and shallthe preparation, negotiation, execution and delivery of all agreements and instruments executed and delivered by any of Agent, Borrowers and/or Incremental Lenders in connection with, such Incremental Loans (including all fees for any supplemental or additional public filings of any Other Documents necessary to protect, preserve and continue the perfection and priority of the liens, security interests, rights and remedies of Agent and ▇▇▇▇▇▇▇ hereunder and under the Other Documents in light of such increase).

Appears in 1 contract

Sources: Revolving Credit, Term Loan and Security Agreement (Ati Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the Borrower Agent may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,00075,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower Agent proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower Agent proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (wx) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (xy) the Administrative Agent, the Issuing Lender and the Swingline Lender Agent shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender Agent would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, Person and (yz) with respect to New Term Commitments, any Affiliated Lender providing a New Term an Incremental Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit CommitmentsLoans. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on or prior to such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the BorrowerBorrowers, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline LenderAgent, or another form of incremental amendment, each of which shall be recorded in the Register; (43) the Borrower Borrowers shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25Financial Condition Covenants, and in any event, after giving effect to any acquisitions acquisitions, Dispositions or dispositions repayments of Indebtedness during the relevant determination period or simultaneously with the borrowing of the Incremental Loans; (4) the Consolidated Senior Secured Leverage Ratio of the Borrowers and the Restricted Subsidiaries shall be less than 2.25 to 1.00 calculated on a Pro Forma Basis as of the most recently completed period of four consecutive fiscal quarters ending prior to such transaction for which the financial statements and certificates required by Section 5.1(a) or 5.1(b); , as the case may be, and 5.1(c) have been delivered, as if such transaction had occurred as of the first day of such period, (5) the Borrower Borrowers shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders Lenders, (6) the representations and warranties of the Parent Companies, the Borrowers and their respective Subsidiaries set forth in this Agreement and the other than Loan Documents shall be true and correct in all material respects (or, in the case of any Defaulting Lender)such representation or warranty already qualified as to materiality, in all respects) on and as of such Increased Amount Date as if made on and as of such date (or, in the case of any such representation or warranty expressly stated to have been made as of a specific date, as of such specific date) and (7) the Administrative Agent shall have received such legal opinions and other documents reasonably requested by the Administrative Agent in connection therewith. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Incremental Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicableIncremental Loans, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Incremental Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower Borrowers (a “New Term Incremental Loan”) in an amount equal to its New Term Incremental Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Incremental Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Incremental Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (dc) The Administrative Agent shall notify Lenders promptly upon receipt of the BorrowerBorrower Agent’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Incremental Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Term Loan Agreement (Genesis Healthcare, Inc.)

Incremental Loans. In addition to Borrowings of Syndicated Revolving Credit Loans pursuant to paragraph (a) At above, at any time or and from time to time after the Closing Datetime, the Borrower Company may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, that any one or more increases of the Lenders or, at the option of the Company, other financial institutions or funds selected by the Company offer to enter into commitments to make additional revolving Incremental Loans, in Dollars, under this paragraph (b) to the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) Borrowers. In the establishment of event that one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as Lenders or such existing Term Loans (a “Term Loan Increase”) other financial institutions or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00funds offer, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its their sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing enter into such commitments, and such Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender or financial institutions or funds and the Swingline Lender Company agree as to the amount of such commitments that shall have consented be allocated to the respective Lenders or financial institutions or funds making such offers and the fees (such consent not if any) to be unreasonably withheld) payable by the Borrowers in connection therewith, such Lenders or financial institutions or funds shall become obligated to such Person’s providing such make Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required Loans under Section 10.6 for this Agreement in an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject amount equal to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to amount of their respective Incremental Loan Commitments (and such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments financial institutions shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and Lenders” hereunder). The Incremental Loans to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and any such agreement between the Company in any event, after giving effect response to any acquisitions or dispositions during such request by the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment Company shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall to be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche “Series” of New Term Incremental Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any Increased Amount Date on which any New Term Commitments such request (and, accordingly, the minimum aggregate principal amount of any tranche are effected Series of Incremental Loans) shall be $20,000,000 or a larger multiple of $1,000,000 and (ii) immediately after giving effect to the establishment of each Incremental Loan Commitment, the sum of the Net Commitment Increase Amount plus the Net Incremental Increase Amount plus the aggregate undrawn amount of all Secured LOCs shall not exceed $300,000,000. Except as otherwise expressly provided herein, the Incremental Loans of any Series shall have the interest rate, participation, commitment, arrangement, upfront and similar fees, commitment reduction schedule (if any) and maturity date, and be subject to such conditions to effectiveness and initial credit extension, as shall be agreed upon by the respective Incremental Lenders of such Series and the Company, provided that in any event (i) the Incremental Loans shall be subject to, and entitled to the benefits of, the Guarantees provided for herein and in the other Loan Documents on an equal and ratable basis with each other Guaranteed Obligation, (ii) the maturity for Incremental Loans shall not be earlier than the Later Commitment Termination Date and may be later than the Later Commitment Termination Date to the extent so agreed by the Company and such Incremental Lenders and (iii) the weighted average-life-to-maturity for each Series of Incremental Loans shall not be shorter than the longest remaining Revolving Credit Availability Period. Following the acceptance by the Company of the offers made by any one or more Lenders to make any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (b), each Incremental Lender in respect of such Series of Incremental Loans severally agrees, on the terms and conditions of this Agreement, to make such Incremental Loans to the Borrowers during the period from and including through any Term the date of such acceptance to and including the commitment termination date specified in the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Increase)Commitment of such Incremental Lender in respect of such Series as in effect from time to time. Thereafter, subject to the satisfaction of the foregoing terms and conditionsconditions of this Agreement, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Borrowers may convert Incremental Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment Series of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Type into Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. Series of another Type (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n2.07) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline or continue Incremental Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment such Series of Revolving Credit one Type as Incremental Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations Series of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate Type (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions provided in Section 10.7 or 10.1 to the contrary2.07). (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Foster Wheeler Ag)

Incremental Loans. (a) At any time or from time prior to time after the Closing Revolving Credit Maturity Date, the Borrower Borrowers may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, establishment of one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any an “Incremental Revolving Facility Increase, Credit Commitment” or the “New Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Commitments”)Facility (any such increase, (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a an Term Loan Incremental Revolving Credit Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event (i) the total aggregate principal amount for all such Incremental Loan Commitments shall the New Revolving Credit Commitments not (as of any date of incurrence thereof) exceed $30,000,000100,000,000 and (ii) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes Borrowers propose that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the identity Agent. The Borrowers may invite any Lender, any Affiliate of each existing any Lender or and/or any Approved Fund, and/or any other Person that is reasonably satisfactory to the Agent, to provide an Assignee Incremental Loan Commitment (eachany such Person, a an New Revolving Credit Incremental Lender”). Any proposed Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Collateral Agent and the Lenders shall have received from KMG an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Agent, that the Borrowers are in compliance with the financial covenants set forth in Section 9.11 based on the financial statements most recently delivered pursuant to Section 8.1(a) or Section 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto and (z) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) the proceeds of any Incremental Loans shall be used as set forth in Section 8.15; (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Credit Agreement Obligations and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (F) in the case of each Incremental Revolving Credit Increase (the terms of which shall be set forth in the relevant Lender Joinder Agreement): (1) such Incremental Revolving Credit Increase shall mature on the Revolving Credit Maturity Date, shall be subject to the same terms and conditions (other than interest rate, unused fees and upfront fees) as the Revolving Credit Loans; (3) provided that if the Incremental Commitmentsinterest rate margins and/or unused fees, as applicable, in respect of any Incremental Revolving Credit Increase exceed the interest rate margins and/or unused fees, as applicable, for the initial Revolving Credit Facility by more than 0.25% or 0.05%, respectively, then the interest rate margins and/or unused fees, as applicable, for the initial Revolving Credit Facility shall be increased so that the interest rate margins and/or unused fees, as applicable, are equal to the interest rate margins and/or unused fees for such Incremental Revolving Credit Increase; (2) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment); and (3) except as provided above, all of the other terms and conditions applicable to such Incremental Revolving Credit Increase shall, except to the extent otherwise provided in this Section 5.13, be identical to the terms and conditions applicable to the Revolving Credit Facility; (G) any Incremental Lender with an Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and any Extensions of Credit made in connection with each Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the other Revolving Credit Loans made hereunder; (H) such Incremental Loan Commitments shall be effected pursuant to one or more Lender Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the BorrowerBorrowers, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such applicable Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.255.13); and (I) the Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, and for without limitation, a resolution duly adopted by the avoidance board of doubt, this Section 2.25 shall supersede directors (or equivalent governing body) of each Borrower Party authorizing such Incremental Loan) reasonably requested by the Agent in connection with any provisions in Section 10.7 or 10.1 to the contrarysuch transaction. (gb) The Loans Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (c) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and Commitments extended or established pursuant conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender hereunder with respect to this paragraph shall constitute Loans and Commitments under, and shallsuch Incremental Revolving Credit Commitment.

Appears in 1 contract

Sources: Credit Agreement (KMG Chemicals Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, at any time prior to the Maturity Date, Parent may by written notice to the Lender on not more than two occasions elect to request the establishment of one or more incremental revolving credit commitments (any such incremental revolving credit commitment, an “Incremental Commitments shall not exceedLoan Commitment”) to make incremental revolving credit loans (any such incremental revolving credit loans, (x) together with the aggregate principal amount of any an “Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25Loan”); provided that in no event (i) the total aggregate amount for all such Incremental Loan Commitments shall the New Revolving Credit Commitments not (as of any date of incurrence thereof) exceed $30,000,00010,000,000 and (ii) the total aggregate amount for each Incremental Loan Commitment shall not be less than $1,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower Parent proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender. The Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1a) the Lender elects to provide such Incremental Loan Commitment; (b) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Commitments, Loan Commitment; (c) each Incremental Loan shall be a “Loan” for all purposes hereof and shall be subject to the same terms and conditions as applicable; (2) the Incremental Commitments will share in Loans and shall be guaranteed with the Collateral other Extensions of Credit on a pari passu basis; ; (3d) the such Incremental Commitments, as applicable, Loan Commitments shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed agreements in form and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and substance satisfactory to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which Parent; and (e) Parent shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, deliver or cause to be paiddelivered any customary legal opinions or other documents (including, all fees and expenses owing in respect without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of Parent authorizing such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders Loan Commitment (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 resolutions duly adopted by the board of directors (or 10.1 to the contrary. (gequivalent governing body) The Loans and Commitments extended or established of Parent delivered pursuant to Section 5.1(b)(ii) which authorize such Incremental Loan Commitment shall be sufficient so long as such resolutions are certified as of the applicable Increased Amount Date as remaining in full force and effect) reasonably requested by the Lender in connection with any such transaction. For the avoidance of any doubt, any Incremental Loan Commitment under this paragraph Agreement shall constitute Loans and Commitments under, and shallincrease the Revolving Credit Commitment on a dollar for dollar basis.

Appears in 1 contract

Sources: Credit Agreement (Twin Disc Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Date and prior to the Latest Maturity Date, the Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request the addition to this Agreement of (Ai) prior to an incremental revolving credit facility in the form of an increase in the Revolving Termination Date, one or more increases in Facility effected pursuant to either (x) additional commitments under any existing Class of the amount of Revolving Commitments (a “any such increase in such Revolving Facility Increase”Commitments (including in respect of any existing Other Revolving Commitment of any Other Revolving Commitment Series), an “Incremental Revolving Commitment”) or (By) the establishment addition of one or more a new tranche of revolving credit commitments with pricing, maturity and/or other terms different from then existing Revolving Commitments as provided in this Section 2.21 (any such new additional tranche of revolving commitments, collectively with any “Other Incremental Revolving Facility Increase, the “New Revolving Credit Commitments”), (Cii) prior Incremental Securitization Refinancing Facilities (as defined below) in the form of a new tranche of term loans or an increase in the Revolving Facility pursuant to the Term Maturity Dateincurrence of Incremental Revolving Credit Commitments or Other Incremental Revolving Commitments, the establishment of or (iii) one or more new tranches of term loan commitments which may be loans (together with any new tranche of term loans incurred in the same tranche as form of an Incremental Securitization Refinancing Facility, collectively “Incremental Refinancing Term Loans”) constituting Refinancing Indebtedness in respect of Permitted First Priority Debt (an “Incremental Senior Debt Refinancing Facility”), or any combination thereof (such existing Incremental Revolving Commitments, Other Incremental Revolving Commitments, Incremental Refinancing Term Loans (a “Term Loan Increase”) in the form of either an Incremental Securitization Refinancing Facility or a separate tranche of new term loans (collectively with any Term Loan Increasean Incremental Senior Debt Refinancing Facility, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitmentscollectively, the “Incremental CommitmentsFacilities”); provided, however, that upon the effectiveness of any such Incremental Facility, no Default shall exist and the Borrower shall, if a Financial Covenant Effectiveness Period is then occurring, be in compliance with Section 6.12 (calculated, in the case of clause (y), on a pro forma basis to give effect to (1) any borrowing under the Incremental Facility (with any Revolving Commitments thereunder being deemed to be fully drawn), (2) any substantially simultaneous repayments of existing Revolving Loans and FILO Loans, (3) in the case of any Incremental Securitization Refinancing Facility, any substantially simultaneous repayments or repurchases of Third Party Interests or Indebtedness incurred under Section 6.01(a)(xvi)(A) (and the related repurchases of Securitization Assets and cessation of future purchases of Securitization Assets)), and (4) in the case of any Incremental Senior Debt Refinancing Facility, any substantially simultaneous repayments or repurchases of Permitted First Priority Debt and provided, further, that no Split-Priority Term Loan Debt may be incurred as an Incremental Facility hereunder. Each The Incremental Commitment Facilities shall (i) be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with excluding the aggregate principal amount of any Incremental Notes, Securitization Refinancing Facilities) not in excess of $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y)300,000,000, (1ii) rank pari passu in right of payment and of security with the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 other Loans, and (2iii) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that if such Incremental Commitments Facility is an increase in the Revolving Facility pursuant to any Incremental Revolving Commitment, such Incremental Facility shall be effectivemade on the same terms (including, which shall be a date after the date on which such notice is delivered to the Administrative Agent without limitation, interest, payment and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitmentmaturity terms), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth conditions as the applicable existing Class of Revolving Commitments to which such Incremental Revolving Commitments relate (it being understood that customary arrangement or commitment fees payable to Arrangers or one or more Lenders or Additional Lenders participating in Section 10.6(c) such increase, as they would otherwise the case may be, may be subject different from those paid with respect to the existing Revolving Commitments of the existing Revolving Lenders on or prior to the Closing Date or with respect to any purchase by or assignment to such Affiliated other Lender of Term Loans in connection with any other Incremental Facility), and (zB) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to if such Incremental Commitments, as applicable; (2) the Incremental Commitments will share Facility is an increase in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected Revolving Facility pursuant to one Other Incremental Revolving Commitments or more Joinder Agreements if such Incremental Facility is in the form of Incremental Refinancing Term Loans, (each, an “x) such Incremental Joinder Agreement”) executed and delivered Facilities have such pricing as may be agreed by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, Borrower and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice any such Incremental Refinancing Term Loans, shall amortize in a manner, and be subject to mandatory prepayments (if any) on terms, acceptable to the Administrative Agent, and mature no earlier than the Latest Maturity date of the FILO Facility and any Revolving Lender with respect to an increase other then existing Incremental Refinancing Term Loans and (z) otherwise be treated hereunder no more favorably than, in the applicable case of Other Incremental Revolving Commitments, the respective interests Revolving Loans and Revolving Commitments (other than any Revolving Loan under Other Revolving Commitments of any Revolving Commitment Series), and in such the case of Incremental Refinancing Term Loans, the outstanding FILO Loans and the FILO Facility and any other Incremental Refinancing Term Loans; provided, that the terms and provisions applicable to any Other Incremental Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Commitments or Incremental Refinancing Term Loans and New Term Commitments may provide for additional or different financial or other covenants applicable only during periods after the New Revolving Credit Loans and New Revolving Credit Commitments, as Latest Maturity Date that is in effect on the case may be, date of any tranche effectiveness of such Incremental Facility. At no time shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of Total ABL Outstandings at such New Term Loans; time exceed (ii) (A) the final maturity date of any tranche ABL Borrowing Base Amount in effect at such time, and the proceeds of the New Term Loans Incremental Facilities shall be no earlier than used solely for the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as purposes set forth in this Section 2.25(e)(vi); 5.10, provided that, notwithstanding anything to that the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments proceeds of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date Incremental Securitization Refinancing Facilities shall be made on a pro rata basis with all other Revolving Commitments on used solely for the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as purposes specified in the applicable penultimate sentence of this Section 2.21 and the proceeds of any Incremental Joinder Agreement; (vi) Senior Debt Refinancing Facility shall be used solely to repay Permitted First Priority Debt and interest and other amounts relating thereto that can be financed with regards to any New Term Loan, if the applicable interest rate Refinancing Indebtedness relating to such New Term Loan exceeds Permitted First Priority Debt. Such notice shall set forth the interest rate requested amount and Class of Incremental Facilities, and shall offer each Lender the opportunity to offer a commitment (the “Incremental Commitment”) to provide a portion of the initial Term Incremental Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time giving written notice of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable offered commitment to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower within a time period (the “Offer Period”) to effect be specified in the provisions of this Section 2.25Borrower’s notice; provided, and for the avoidance of doubthowever, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 that no existing Lender will be obligated to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallsubscribe for

Appears in 1 contract

Sources: Credit Agreement (Rite Aid Corp)

Incremental Loans. (a) At any time or from time to time after the Closing Date and prior to the Facility Termination Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, establishment of one or more increases in the amount of Aggregate Commitment (any such increase, an “Incremental Revolving Commitments Credit Commitment”) to make revolving credit loans under the Revolving Credit Facility (a any such increase, an Incremental Revolving Facility Credit Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such increases during the term of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 this Agreement shall not exceed $200,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Increase shall not be less than $15,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Revolving Credit Increase shall be effective. The Borrower may invite any Lender, which shall be a date after the date on which such notice is delivered any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New an “Incremental Lender”). Any Incremental Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1a) no Unmatured Default or Event of Default shall exist on such Increased Amount Date; (b) each of the representations and warranties contained in Article 5 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date after giving with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) as of such earlier date); (c) in the case of each Incremental Revolving Credit Increase: (i) the outstanding Revolving Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental Commitments, as applicable; Revolving Credit Increase) in accordance with their revised Pro Rata Share (2) and the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to ‎Section 3.04 in connection with such reallocation as if such reallocation were a repayment); and (ii) such Incremental Revolving Credit Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Lender Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such applicable Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (bwhich Lender Joinder Agreement(s) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.22); (d) No existing Lender shall be obligated to participate in any Incremental Revolving Credit Increase, and for the avoidance of doubt, this Section 2.25 each Lender’s decision to provide (or not provide) an Incremental Revolving Credit Commitment in any instance shall supersede any provisions be made in Section 10.7 or 10.1 to the contrarysuch Lender’s sole and absolute discretion in each case. (ge) The Loans On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and Commitments extended or established pursuant to this paragraph conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall constitute Loans and Commitments under, and shallbecome a Lender hereunder.

Appears in 1 contract

Sources: Credit Agreement (XPO Logistics, Inc.)

Incremental Loans. (a) At any time prior to (i) the Latest Term Loan Maturity Date, the Borrower may, upon ten Business Days’ notice to the Administrative Agent (or from time such lesser notice as agreed to time after by the Closing Administrative Agent), add one or more additional tranches of incremental term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new term loan commitments to provide such Term Loans (any such new tranche or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) the Latest Revolving Credit Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, add one or more increases in additional tranches of incremental revolving facilities and/or increase the aggregate amount of the Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more any existing Class by requesting new revolving credit loan commitments to provide Revolving Loans (any such new commitmentstranche or increase, collectively an “Incremental Revolving Facility” and, together with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Incremental Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit CommitmentsFacility, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually Facilities” (and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount DateIncremental Facility) on which ); the Borrower proposes that such loans thereunder, “Incremental Commitments shall be effectiveRevolving Loans” and any Incremental Revolving Loans, which shall be a date after together with any Incremental Term Loans, “Incremental Loans”); by an aggregate amount not in excess of the date on which such notice is delivered to Incremental Cap, tested at the Administrative Agent and (B) the identity time of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocationsincurrence thereof; provided that (wi) any such request for a new tranche or an increase of Incremental Term Loans shall be in a minimum amount of $5,000,000, and (ii) any such request for a new tranche or an increase of Incremental Revolving Loans shall be in a minimum amount of $5,000,000. The Borrower may invite (A) any Lender, any Affiliate of any Lender approached and/or any Approved Fund, and/or (B) any other Person that would be an Eligible Assignee to provide all or a portion of the Incremental Commitments (any such Person, an “Incremental Lender”); provided, that the Administrative Agent shall have a right to consent to any Person becoming an Incremental Lender pursuant to clause (B) above (such consent not to be unreasonably withheld or delayed) in each case, to the extent such consent would be required under Section 12.07(a)(i)(B). Any existing Lender offered or approached to provide a portion of the Incremental Commitments or any Incremental Loan may elect or decline, in its sole discretion, to provide an a portion of the Incremental Commitment (it being understood that there is no obligation to approach Commitments or any Incremental Loans and any existing Lenders Lender may elect to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such or Incremental Loans without the consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, any other Lender. (ya) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment The Incremental Facilities shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effectivefollowing provisions, as of such Increased Amount Date; applicable: (i) subject to, and except as otherwise provided that in, clause (1x) below, (A) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental CommitmentsFacility, (B) the condition set forth in Section 4.02(b) shall be satisfied, (C) after giving effect to the incurrence of any Incremental Facility, the Borrower shall be in compliance with the Financial Covenants calculated on a Pro Forma Basis as applicable; of the last day of the most recently ended Test Period, assuming a full drawing of such Incremental Facility (2and without “netting” the cash proceeds of any such Incremental Facility) and (D) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) through (C) above, together with reasonably detailed calculations demonstrating compliance with clause (C) above; (ii) subject to clauses (iv) and (v) below, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility; (iii) the Incremental Commitments will share Loans (A) shall rank pari passu in right of payment and with respect to security with the Secured Obligations, (B) may not be secured by any assets other than Collateral (provided that, in the Collateral on case of any Incremental Facility that is funded into Escrow or similar arrangement, such Incremental Facility may be secured by the applicable funds and related assets held in Escrow (including any related deposit of Cash or Cash Equivalents to cover interest and premium with respect to such Incremental Facility) (and the proceeds thereof) until such Incremental Facility is released from Escrow) and (C) may not be guaranteed by any Person who is not a pari passu basis; Credit Party (3it being understood that obligations of any Person with respect to any Escrow or other similar arrangement shall not constitute a guarantee by a Subsidiary that is a Non-Credit Party); (iv) any Incremental Term Loans will not have (A) a maturity date earlier than the then-existing Latest Term Loan Maturity Date or (B) a shorter Average Life to maturity than the remaining Average Life to maturity of the Initial Term Loans (without giving effect to any prepayment of the Initial Term Loans that would otherwise modify the Average Life to maturity thereof); (v) any Incremental Revolving Loans will not have a maturity date earlier than (or require scheduled amortization or differing mandatory commitment reductions prior to) the then-existing Latest Revolving Credit Maturity Date; (vi) in the event that the All-In Yield of any Incremental CommitmentsTerm Facility effected exceeds the All-In Yield of the existing Term Loans by more than 75 basis points, then the Applicable Margin Percentage for the existing Term Loans shall be increased to the extent necessary so that the All-In Yield of the Term Loans is equal to the All-In Yield of such term loans incurred pursuant to such Incremental Term Facility minus 75 basis points; provided that, to the extent the All-In Yield with respect to such Incremental Term Facility is greater than such All-In Yield with respect to the existing Term Loans solely as applicablea result of a higher interest rate floor, then the increase to the Applicable Margin Percentage shall be effected solely by increasing the interest rate floor on the existing Term Loans; provided, further, that this clause (vi) shall not apply to any Incremental Term Facility after the first twenty-four (24) months following the Closing Date; (vii) except as otherwise permitted herein (including with respect to currency, margin, pricing (including any “most favored nation” or other pricing terms), interest rate margins, rate floors, fees, premiums (including prepayment premiums), funding discounts and, subject to clauses (iv) and (v) above, maturity and amortization), (A) the terms of any Incremental Term Facility, if not substantially consistent with those applicable to any then-existing term facility, must be reasonably acceptable to the Administrative Agent (it being agreed that any terms contained in such Incremental Term Facility that are (x) applicable only after the then-existing Latest Term Loan Maturity Date and/or (y) more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Credit Documents and are then conformed (or added) to the Credit Documents for the benefit of the Term Lenders or the Administrative Agent, as applicable (i.e., by conforming or adding a term to the then-outstanding term facility pursuant to one the applicable Incremental Facility amendment) shall be deemed acceptable to the Administrative Agent) (provided that, in the event such Incremental Term Facility contains a financial maintenance covenant, such financial maintenance covenant is conformed or more Joinder Agreements added to the Credit Documents for the benefit of the Term Lenders) and (eachB) the terms of any Incremental Revolving Facility, an “if not substantially consistent with those applicable to any then-existing revolving facility must be reasonably acceptable to the Administrative Agent (it being agreed that any terms contained in such Incremental Joinder Agreement”Revolving Facility that are (x) executed and delivered by applicable only after the Borrower, the New then-existing Latest Revolving Credit Lender Maturity Date and/or (y) more favorable to the lenders or New Term Lenderthe agent of such Incremental Revolving Facility than those contained in the Credit Documents (including any financial maintenance covenant that is more favorable to the lenders or agent of such Incremental Revolving Facility than the Financial Covenants in Section 7.01) and are then conformed (or added) to the Credit Documents for the benefit of the Revolving Lenders or, as applicable, and to the extent applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding revolving facility pursuant to the applicable Incremental Facility revolving credit ma) shall be deemed satisfactory to the Administrative Agent) (which amendments may be implemented by the Borrower and the Issuing Administrative Agent without the consent of the Required Lenders or other Lenders required by Section 12.06; it being acknowledged and agreed by each Lender that (x) it hereby irrevocably authorizes and directs the Administrative Agent to enter into such amendment and (y) the Administrative Agent, in its capacity as such shall have no liability with respect to such amendment and each Lender hereby irrevocably waives to the fullest extent permitted by Requirement of Law any claims against the Administrative Agent with respect to such amendment); (viii) mandatory prepayments (other than scheduled amortization payments) of Incremental Term Loans shall be made on a pro rata basis with all Initial Term Loans and all Initial Revolving Loans (and all then existing Additional Term Loans and all then existing Additional Revolving Loans requiring ratable prepayment), except that the Borrower and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing Lenders in respect of such Incremental Term Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary permitted, in order thattheir sole discretion, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect elect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans prepay or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitmentsreceive, as applicable, for any mandatory prepayments on a pro rata basis or less than pro rata basis (but not greater than pro rata basis) and any voluntary prepayments on a pro rata or less than pro rata basis (but not greater than pro rata basis); (ix) mandatory prepayments (other than scheduled amortization payments) of Incremental Revolving Loans shall be made on a pro rata basis with all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Initial Term Loans and be treated as all Initial Revolving Loans (and all then existing Additional Term Loans and all then existing Additional Revolving Loans requiring ratable prepayment), except that the same tranche as Borrower and the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche Incremental Revolving Loans shall be permitted, in their sole discretion, to elect to prepay or the tranche of New Term Commitments and the New Term Lenders of such tranchereceive, as applicable, any mandatory prepayments on a pro rata basis or less than pro rata basis (but not greater than pro rata basis) and any voluntary prepayments on a pro rata or less than pro rata basis (ybut not greater than pro rata basis); (x) any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility; (xi) the proceeds of any Incremental Facility may be used for working capital and/or other general corporate purposes (including Capital Expenditures, Permitted Acquisitions, permitted Investments, Restricted Payments and Restricted Debt Payments and, in each case, related fees and expenses (so long as, in the case of each notice Permitted Acquisitions, permitted Investments, Restricted Payments and Restricted Debt Payments, such proceeds are applied to any Revolving Lender with respect to an increase in such Permitted Acquisitions, permitted Investments, Restricted Payments and Restricted Debt Payments within ninety (90) days of the date up which the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated Incremental Facility is incurred)) and any other use permitted by clause (b) of this Section 2.25.Agreement; and (exii) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 2.22 or otherwisein any other provision of any Credit Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Permitted Acquisition or other similar permitted Investment and the Lenders providing such Incremental Facility so agree (and, in the case of any Incremental Revolving Facility, the Required Revolving Lenders so agree), notwithstanding clauses (a)(i)(A) and (a)(i)(B) above and subject to Section 1.02(b)(iv), (A) the only representations and warranties the accuracy of which shall be a condition to such Incremental Facility shall be (I) the representations and warranties made by the seller or the target of such Permitted Acquisition or other similar permitted Investment and under the acquisition agreement (or other equivalent agreement) that are (X) material to the interests of the Lenders and (Y) give the purchaser the right to terminate such acquisition agreement (or other equivalent agreement) in accordance with the terms thereof (as determined by the parties thereto) and (II) the Specified Representations (in the case of this clause (II), as is conformed to apply only to such Permitted Acquisition or other similar permitted Investment and the acquired business and as may be waived or modified in scope by the lenders providing such Incremental Facility) and (B) except as otherwise agreed by the lenders providing the relevant Incremental Facility in connection with a Permitted Acquisition or other similar permitted Investment, no Event of Default shall exist immediately prior to or after giving effect to such Incremental Facility. (b) Any Incremental Facility shall be effected pursuant to an Incremental Facility Agreement executed and delivered by the Administrative Agent, the Borrower and the applicable Incremental Lenders, which Incremental Facility Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22. The Lenders hereby irrevocably authorize and direct the Administrative Agent to enter into any Incremental Facility Agreement and any amendment to any of the other Credit Documents with the Credit Parties as may be necessary in order to establish new tranches or sub-tranches in respect of Loans or Commitments increased or extended pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches (which may include amending and restating the Credit Documents), in each case on terms consistent with this Section 2.22, including any changes to Section 2.06(a) necessary to ensure such Incremental Term Facilities are fungible with the existing term facility if such facility is intended to be of the same Class as the relevant existing term facility; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such shall have no liability with respect to such amendments and each Lender hereby irrevocably waives to the fullest extent permitted by Requirements of Law any claims with respect to such amendments. (c) The Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including a resolution duly adopted by its Board of Directors authorizing the applicable Incremental Facility) reasonably requested by the Administrative Agent or the lenders providing such Incremental Facility in connection with any Incremental Facility. (d) On the effective date of any Incremental Commitment, each Incremental Lender that has agreed to provide such Incremental Commitments shall become a Lender hereunder. (e) On the date of the making of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Section 2.08, such Incremental Term Loans shall be added to (and constitute a part of and be of the same Type as and have, if applicable, the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then outstanding Borrowing of Term Loans of such Class. (f) To the extent the Borrower elects to implement any Incremental Revolving Facility that establishes Revolving Credit Commitments of a new Class, then notwithstanding any other provision of this Agreement to the contrary, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New the Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Blue Bird Corp)

Incremental Loans. (a) At any time or from time Subject to time after the Closing Dateterms and conditions and in reliance upon the representations and warranties set forth herein, each First Incremental Lender hereby agrees (severally and not jointly) to make an Incremental Loan to the Borrower may by written notice to on the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “First Incremental Commitments”). Each Incremental Commitment shall be Amendment Closing Date in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything equal to the contrary herein, the its First Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee Commitment (each, a “New Revolving Credit LenderFirst Incremental Loanor and collectively, the New Term Lender,” as applicable) to whom the Borrower proposes any portion of such First Incremental Commitments, be allocated and the amounts of such allocationsLoans”); provided that (w) any Lender approached each First Incremental Loan made on the First Incremental Amendment Closing Date shall be funded net of additional interest in an amount equal to provide all or a portion 1.0% of the principal amount of such First Incremental Commitments Loan. Amounts borrowed under this Section 2(a) and repaid or prepaid may elect or decline, in its sole discretion, to provide an not be reborrowed. The Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Loan Maturity Date for the First Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effectiveJanuary 15, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender)2015. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility IncreaseUnless the context shall otherwise require, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving First Incremental Lenders shall assign to constitute “Lenders” and the First Incremental Loans shall constitute “Loans”, in each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed case for all purposes a Revolving Commitment of the Credit Agreement and each the other Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating theretoDocuments. (c) Any New Term The proceeds of the First Incremental Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to used by the Borrower (a “New Term Loan”) to pay fees and expenses incurred in an amount equal connection with this Amendment, to its New Term Commitment of such tranche, provide working capital for exploration and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche production operations and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loansfor general corporate purposes. (d) The Administrative Agent Unless previously terminated, the First Incremental Commitments shall notify Lenders promptly terminate upon receipt the earlier to occur of (i) the making of the Borrower’s notice of each Increased Amount First Incremental Loans on the First Incremental Amendment Closing Date and in respect thereof (xii) the tranche of 5:00 p.m., New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such trancheYork City time, as applicableon April 15, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.252011. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche This Amendment shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: constitute (i) the Weighted Average Life written notice required to Maturity of all New Term Loans of any tranche shall be no shorter than delivered by the Weighted Average Life Borrower with respect to Maturity the First Incremental Commitments pursuant to Section 2.08(a) of the then outstanding Term Loans on the date of incurrence of such New Term Loans; Credit Agreement and (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term an Incremental Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate Assumption Agreement for purposes of determining whether an increase to Section 2.08(b) of the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit LoansAgreement. (f) Each Upon the making of the First Incremental Joinder Agreement mayLoans on the First Incremental Amendment Closing Date, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and will provide a copy of Annex I as in effect on such date to the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contraryeach Lender (including each First Incremental Lender). (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Incremental Loan Assumption Agreement and Amendment No. 1 to Credit Agreement (Atp Oil & Gas Corp)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to an “Incremental Revolving Credit Commitment” and, together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental NotesTerm Loans, $100,000,000 plus (y) an additional amount of the “Incremental Commitments so long as in the case of this clause (yLoans”), ; provided that (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $50,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide a Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); provided that with respect to any Incremental Loans or Incremental Loan Commitments will share incurred prior to the earlier of (1) the Delayed Draw Expiration Date and (2) the date that Holdings irrevocably notifies the Administrative Agent in writing that it does not intend to make any further Shareholder Distributions, the Collateral proceeds of such Incremental Loans or Incremental Loan Commitments shall be used solely to finance Permitted Acquisitions; (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (bF) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice to any Revolving Lender with respect to an increase in Incremental Term Loan (the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) terms of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental relevant Lender Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall):

Appears in 1 contract

Sources: Credit Agreement (Media General Inc)

Incremental Loans. (a) At any time or from time to time after the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect and the Person appointed by the Borrower to arrange Incremental Loan Commitments (such Person (who (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) prior to the Revolving Termination Date, one or more increases in new commitments for new Term Loans which may be of the amount same Class as any outstanding Class of Revolving Commitments Term Loans or a new Class of Term Loans (a the Revolving Facility IncreaseIncremental Term Loan Commitments), ) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Incremental Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Incremental Revolving Credit Commitments, collectively with any New Revolving Credit Incremental Term Loan Commitments, the “Incremental Loan Commitments”). Each Incremental Commitment shall be , in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, exceed the Incremental Commitments shall not exceed, Loan Amount (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each caseRevolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Credit Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25available); provided that Incremental Loan Commitments may be incurred in no event the Available Currency or an alternative currency pursuant to procedures and on terms to be agreed with the applicable Incremental Arranger. The Incremental Arranger shall the New Revolving Credit Commitments exceed $30,000,000. Each promptly deliver a copy of such notice to each of the Lenders. Such notice shall specify set forth (Ai) the date amount of the Incremental Loan Commitments being requested (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be in minimum increments of, $1,000,000 and a date after minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Incremental Arranger in its reasonable discretion), or such lesser amount equal to the Incremental Loan Amount at such time), (ii) the date on which such notice is delivered Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days (or such shorter period as agreed by the Incremental Arranger) after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make Loans with terms different from such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject only to the Administrative Agent satisfaction of the terms and conditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (A) (1) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class and (2) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (B) the identity of (1) each existing Lender or other Person that is an Assignee (each, a “New Incremental Revolving Credit Lender” or “New Term Lender,” as applicable) Lender of such Class shall make its Commitment available to whom the Borrower proposes (when borrowed, an “Incremental Revolving Loan” and collectively with any portion Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (2) each Incremental Commitments, be allocated Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the amounts Incremental Revolving Loans of such allocationsClass made pursuant thereto. (a) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that (wi) any Lender approached the Borrower and the Administrative Agent shall have consented to provide all or a portion such additional banks, financial institutions and other institutional lenders to the extent the consent of the Incremental Commitments may elect Borrower or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to as applicable, would be unreasonably withheld) to such Person’s providing such Incremental Commitments required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent, the Issuing Lender and Swingline Lender would Agent shall not be required under Section 10.6 for with respect to an assignment additional bank, financial institution, or other institutional lender that is an Affiliate of Loans a Lender or Commitments to such Persona Related Fund), (yii) with respect to New Incremental Term Loan Commitments, any Affiliated Lender providing a New an Incremental Term Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) 9.04 as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (ziii) Affiliated Lenders may not provide New Incremental Revolving Credit Commitments. Such The Borrower and each Incremental Commitments Lender shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect execute and deliver to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Arranger an Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan Assumption Agreement and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallother

Appears in 1 contract

Sources: Credit Agreement (Altice USA, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Aa) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Credit Commitments (a any such increase, an Incremental Revolving Credit Commitment” or the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” or the “Incremental Loans”); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed (A) the greater of (x) $135,000,000 and (y) 100% of Consolidated EBITDA, plus (B) the establishment of one or more new revolving credit commitments an amount (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything 0) equal to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of additional Indebtedness that would cause the Total Net Leverage Ratio as of the most recently ended Measurement Period prior to the incurrence of such additional Indebtedness, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness (assuming any Incremental NotesRevolving Credit Commitment is fully-drawn), $100,000,000 plus not to exceed 3.25 to 1.00 (y) an additional provided that such amount of Incremental Commitments so long as in the case of this clause (yB) may be in the form of Incremental Equivalent Debt, as permitted under Section 9.1(m), ) (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00provided that, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum any amount of Incremental Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made funded pursuant to the terms of this Section 2.25); provided that in no event Agreement shall reduce the New Revolving Credit Commitments exceed total aggregate principal amount for all Incremental Equivalent Debt permitted to be incurred hereunder on a dollar-for-dollar basis) and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $30,000,00010,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower shall first invite existing Lenders and may then invite any Affiliate of any Lender and/or any Approved Fund and/or any other Person reasonably satisfactory to the Administrative Agent to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and (B) the identity of Issuing Lender shall consent to each existing Incremental Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes providing any portion of such an Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share in the Collateral on a pari passu basis; Loans pursuant thereto and (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements any Permitted Acquisition consummated in connection therewith; (each, an “Incremental Joinder Agreement”ii) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which Lenders shall be recorded in the Register; (4) have received from the Borrower shall be a Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants specified in Section 7.1 (assuming a borrowing of 9.16 [Total Net Leverage Ratio] and Section 9.17 [Interest Coverage Ratio], based on the maximum amount of Loans available under the Facilities financial statements most recently delivered pursuant to Section 8.1(a) [Annual Financial Statements] or Section 8.1(b) [Quarterly Financial Statements], as applicable, both before and after giving effect (on a Pro Forma Basis) to such (x) any Incremental Loan Commitment, and (y) the making of any Incremental Commitments previously made Loans pursuant thereto (with any Incremental Loan Commitment being deemed to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); be fully drawn) and (5z) the Borrower shall pay, or cause to be paid, all fees and expenses owing any Permitted Acquisition consummated in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).connection therewith; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (aiii) each of the Revolving Lenders representations and warranties contained in Article 6 shall assign be true and correct in all material respects, except to each of the New Revolving Credit Lendersextent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereofin which case, such interests representation and warranty shall be true, correct and complete in the New Revolving Credit Loans (as defined below) outstanding all respects, on such Increased Amount Date with the same effect as shall be necessary in order that, after giving effect to all such assignments if made on and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition as of such New Revolving Commitments to the Revolving Commitmentsdate (except for any such representation and warranty that by its terms is made only as of an earlier date, (b) each New Revolving Commitment which representation and warranty shall be deemed for all purposes a Revolving Commitment remain true and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, correct as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increaseearlier date), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms the proceeds of the New Revolving Credit Commitments and New Revolving Credit any Incremental Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except used for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage general corporate purposes of the Revolving Commitments on the Increased Amount Date (Borrower and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder its Subsidiaries (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity datesPermitted Acquisitions); (v) the New Term Loans may participate on Any proposed Incremental Lender shall join this Agreement as a pro rata basis or less than pro rata basis (but not on Lender pursuant to a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Lender Joinder Agreement; (vi) with regards to any New Term Loan, if each Incremental Loan Commitment (and the applicable interest rate relating to such New Term Loan exceeds the interest rate Incremental Loans made thereunder) shall constitute Obligations of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility Borrower and shall be adjusted secured and guaranteed with the other Obligations on a pari passu basis; (1) in the case of each Incremental Revolving Credit Increase: (I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to be equal fees, in each case at the rate applicable to the applicable interest rate relating Revolving Credit Facility, and shall otherwise be subject to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, the same terms and conditions as the Revolving Credit Facility; (xII) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to Incremental Lender making any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which Incremental Revolving Credit Increase shall be deemed to constitute a like amount of original issue discount) paid by the Borrower entitled to the same voting rights as the existing Revolving Credit Lenders under the New Term Loan and such initial Term Revolving Credit Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the applicable margin on any initial Term Facility that became effective subsequent Incremental Revolving Credit Increase to the Closing Date but be terminated prior to termination of the time existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of such New Term Loan shall also be included in such calculations; provided, further, that if prepayments on the reserve adjusted Eurodollar Rate (same basis as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New existing Revolving Credit Loans will rank pari passu in right (such prepayments to be shared pro rata on the basis of payment with existing Term Loans and the original aggregate funded amount thereof); and (III) the outstanding Revolving Credit Loans and Ratable Shares of Swingline Loans and Letter of Credit Obligations will be reallocated by the liens securing Administrative Agent on the New Term Loans and/or New applicable Increased Amount Date among the Lenders to the Revolving Credit Loans will rank pari passu with Facility (including the liens securing the existing Term Loans and Incremental Lenders providing such Incremental Revolving Credit LoansIncrease) in accordance with their revised Ratable Shares, and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required. (f2) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.11, and for without the avoidance consent of doubt, this Section 2.25 any other Lenders; and (3) the Borrower shall supersede deliver or cause to be delivered any provisions customary legal opinions or other documents (including a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in Section 10.7 or 10.1 to the contraryconnection with any such transaction. (gb) The Loans Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (c) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and Commitments extended or established pursuant conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to this paragraph shall constitute Loans and Commitments under, and shallsuch Incremental Revolving Credit Commitment. ARTICLE 245 [RESERVED]

Appears in 1 contract

Sources: Credit Agreement (Kratos Defense & Security Solutions, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Aa) prior to the Revolving Termination Date, [reserved]; (b) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitmentsincreases, the “Incremental Loan Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything ) to make revolving credit loans under the contrary hereinRevolving Credit Facility (such increases, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25Loans”); provided that in no event (i) the total aggregate principal amount for all such Incremental Loan Commitments shall the New Revolving Credit Commitments not (as of any date of incurrence thereof) exceed $30,000,000300,000,000 and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and (B) the identity of Issuing Lender shall consent to each existing Incremental Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes providing any portion of an Incremental Loan Commitment (such consents not to be unreasonably withheld). Any proposed Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender offered or approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; and (2) the making of any Incremental Commitments will share in the Collateral on a pari passu basis; Loans pursuant thereto; (3ii) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which Lenders shall be recorded in the Register; (4) have received from the Borrower shall be a Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants specified in Sections 9.14 and 9.15, in each case based on the financial statements most recently delivered pursuant to Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities 8.12(a) [Quarterly Financial Statements] or 8.12(b) [Annual Financial Statements], as applicable, both before and after giving effect (on a Pro Forma Basis) to such (x) any Incremental Loan Commitment, and (y) the making of any Incremental Commitments previously made Loans pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); thereto and (5z) the Borrower shall pay, or cause to be paid, all fees and expenses owing any Permitted Acquisition consummated in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).connection therewith; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (aiii) each of the Revolving Lenders representations and warranties contained in Article 6 shall assign be true and correct in all material respects, except to each of the New Revolving Credit Lendersextent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereofin which case, such interests representation and warranty shall be true, correct and complete in the New Revolving Credit Loans (as defined below) outstanding all respects, on such Increased Amount Date with the same effect as shall be necessary in order that, after giving effect to all such assignments if made on and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition as of such New Revolving Commitments to the Revolving Commitmentsdate (except for any such representation and warranty that by its terms is made only as of an earlier date, (b) each New Revolving Commitment which representation and warranty shall be deemed for all purposes a Revolving Commitment remain true and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, correct as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increaseearlier date), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms the proceeds of the New Revolving Credit Commitments and New Revolving Credit any Incremental Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except used for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be any purpose permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dateshereunder; (v) the New Term Loans may participate on any proposed Incremental Lender shall join this Agreement as a pro rata basis or less than pro rata basis (but not on Lender pursuant to a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Lender Joinder Agreement; (vi) with regards to any New Term Loan, if each Incremental Loan Commitment (and the applicable interest rate relating to such New Term Loan exceeds the interest rate Incremental Loans made thereunder) shall constitute Obligations of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility Borrower and shall be adjusted guaranteed with the other Obligations on a pari passu basis; (1) [reserved]; (2) in the case of each Incremental Loan: (I) such Incremental Loan shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to be equal fees, in each case at the rate applicable to the applicable interest rate relating Revolving Credit Facility, and shall otherwise be subject to such New Term the same terms and conditions as the Revolving Credit Facility; (II) any Incremental Lender making any Incremental Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower entitled to the same voting rights as the existing Lenders under the New Term Loan and such initial Term Revolving Credit Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the applicable margin on any initial Term Facility that became effective subsequent Incremental Loan to the Closing Date but be terminated prior to termination of the time of such New Term existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Loan shall also be included in such calculations; provided, further, that if receive proceeds of prepayments on the reserve adjusted Eurodollar Rate (same basis as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New existing Revolving Credit Loans will rank pari passu in right (such prepayments to be shared pro rata on the basis of payment with existing Term Loans and the original aggregate funded amount thereof); and (III) the outstanding Revolving Credit Loans and Ratable Shares of Swingline Loans and Letter of Credit Obligations will be reallocated by the liens securing Administrative Agent on the New Term Loans and/or New applicable Increased Amount Date among the Lenders to the Revolving Credit Loans will rank pari passu Facility (including the Incremental Lenders providing such Incremental Loan) in accordance with their revised Ratable Shares (and the liens securing Lenders to the existing Term Loans and Revolving Credit LoansFacility (including the Incremental Lenders providing such Incremental Loan) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required. (f3) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.11, and for without the avoidance consent of doubt, this Section 2.25 any other Lenders; and (4) the Borrower shall supersede deliver or cause to be delivered any provisions in Section 10.7 or 10.1 customary legal opinions (to be addressed to the contraryAdministrative Agent and all Incremental Lenders) or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction. (gc) The Loans Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (d) [Reserved.] (e) On any Increased Amount Date on which any Incremental Loan becomes effective, subject to the foregoing terms and Commitments extended or established pursuant conditions, each Incremental Lender with an Incremental Loan Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to this paragraph shall constitute Loans and Commitments under, and shallsuch Incremental Loan Commitment.

Appears in 1 contract

Sources: Credit Agreement (EPAM Systems, Inc.)

Incremental Loans. (a) At any time On or from time to time after before the Closing Term Loan Maturity Date or the Revolving Credit Maturity Date, as applicable, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one (i) incremental or more new revolving credit additional term loan facilities (each, an “Incremental Term Facility”, and the commitments (any such new commitments, collectively with any Revolving Facility Increase, thereunder the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan IncreaseCommitments”) or (ii) incremental or additional revolving credit facilities, which, for the avoidance of doubt, may include, at the option of Borrower, an increase in the size of the Revolving LC Sublimit on a separate tranche dollar-for-dollar basis with the size of new term loans the Incremental Revolving Facility (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything subject to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio consent of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00Issuing Bank, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments its sole and any Incremental Commitments previously made pursuant to this Section 2.25absolute discretion); provided that in no event shall the New Revolving Credit Commitments LC Sublimit exceed $30,000,00080,000,000 at any time (each, an “Incremental Revolving Facility” and, together with the Incremental Term Facilities, the “Incremental Facilities”; and the commitments thereunder, the “Incremental Revolving Commitments” and, together with the Incremental Term Loan Commitments, collectively, the “Incremental Loan Commitments”). Subject to the terms and conditions set forth in this Section 2.22 and to the conditions precedent to each Credit Event set forth in Section 4.02 hereto, the Incremental Facilities shall be, in the case of any Incremental Term Facility, funded, or in the case of any Incremental Revolving Facility, available on the relevant Increased Amount Date; provided that (x) the aggregate amount of all Incremental Facilities shall not exceed the aggregate principal amount of $35,000,000, (y) each Incremental Term Facility shall be in an amount equal to at least $5,000,000 and (z) each Incremental Revolving Facility shall be in an amount equal to at least $5,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such the Incremental Loan Commitments shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocationsAgent; provided that (w) any Lender offered or approached to provide all or a portion of the any Incremental Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, Loan Commitments. (yb) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Loan Commitments shall become effective, effective as of such the applicable Increased Amount Date; provided that (1i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loan Commitments and any Borrowings on such date; (ii) after giving effect to such Incremental Loan Commitments and any Borrowings on such date each of the conditions set forth in Section 4.02 shall be satisfied; (iii) (A) the Total Leverage Ratio after giving effect to such Incremental Loan Commitments, as applicable; any Borrowings and use of proceeds thereof on such date on a Pro Forma Basis shall not exceed a level 0.50:1.00 lower than the Total Leverage Ratio then required to be maintained under Section 6.15 and (2B) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower Loan Parties shall be in pro forma compliance on a Pro Forma Basis with the financial covenants Financial Covenants; provided, that, for purposes of the calculations set forth in Section 7.1 clauses (assuming iii)(A)-(C), such calculations with respect to Incremental Revolving Credit Commitments shall assume a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, Revolving Credit Commitment and any other Incremental Revolving Credit Commitments previously made pursuant to this Section 2.252.22); (iv) the Incremental Loans shall share ratably in the Collateral; (v) except to the extent that the applicable Joinder Agreement otherwise provides, and the Incremental Loans that are term loans (“Incremental Term Loans”) shall share ratably in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing mandatory prepayments of the Incremental existing Term Loans); and (5vi) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect maturity date of any Loan under such Incremental Loans to Facility shall not be earlier than the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Maturity Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. , in the case of any Incremental Term Facility, or the Revolving Loans, in the case of any Incremental Revolving Facility; (dvii) The Administrative Agent the Weighted Average Life to Maturity applicable to any Incremental Term Facility shall notify Lenders promptly upon receipt be equal to or greater than Weighted Average Life to Maturity of the Borrower’s notice of each Increased Amount Date and in respect thereof existing Term Loan Facility; (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (yviii) in the case of each notice to any Revolving Lender with respect to an increase in the applicable revolving loans (“Incremental Revolving CommitmentsLoans”) (A) such loans shall mature no earlier than, and require no scheduled amortization or mandatory commitment reduction prior to, the respective interests in such Revolving Lender’s Revolving CommitmentsCredit Maturity Date, in each case subject (B) all other terms (other than pricing, upfront fees and unused commitment fees) shall be substantially identical to the assignments contemplated by clause existing Revolving Credit Facility (b) of this Section 2.25. (e) The terms, provisions and documentation in the reasonable discretion of the New Term Loans Administrative Agent) or otherwise reasonably acceptable to the Administrative Agent and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall (C) all other terms will be as agreed between the Borrower and the New Term Incremental Revolving Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Incremental Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: ; (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (Aix) in the case of a any increase in term loans, all terms and documentation with respect to any Incremental Term Loan Increase, any New Term Loans Facility (A) shall be on the same terms and pursuant reasonably acceptable to the same documentation as the Term Loans increased thereby and Administrative Agent, (B) in will be as agreed between the case of a Revolving Facility Increase, any New Revolving Borrower and the Incremental Term Lenders providing such Incremental Loans and New Revolving Credit (C) other than in respect of the initial conditions to borrowing thereunder, shall not be more restrictive to the Parent and its Subsidiaries than the terms of the applicable existing Facility unless the Lenders under the applicable existing Facility also receive the benefit of the more restrictive terms (without any consent being required); (x) such Incremental Loans or Incremental Loan Commitments shall be effected pursuant to one or more joinder agreements executed and delivered by the Borrower, the Administrative Agent and one or more Incremental Lenders and setting forth the terms applicable to such Incremental Loans and Incremental Loan Commitments (each, a “Joinder Agreement”); (xi) the Incremental Loans shall rank pari passu in right of payment and security to the existing Facility; (xii) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby and, if applicable, a Borrowing Request; and (xiii) if the interest rate applicable to the Incremental Loans under any Incremental Facility shall be higher than the corresponding interest rate on the same terms and pursuant applicable existing Facility by 0.25% or more, then the interest rate applicable to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or applicable existing Facility shall be increased to a level that is not less than 0.25% below such Incremental Facility (in each case, as may be otherwise agreed between calculated for both the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity datethe applicable existing Facility, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g)each case, without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments inclusive of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or and upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturitymaturity with respect to the existing Facilities and, if the relevant Incremental Facility will have a maturity of less than four years, then based on the actual maturity for such Incremental Facility)); provided that in determining interest rates applicable to the existing Term Loans or Revolving Loans, as applicable, or the applicable Incremental Facility, (x) customary arrangement or commitment fees payable in connection with the existing Term Loans or Revolving Facility, as applicable, or to one or more arrangers (or their affiliates) of the applicable Incremental Facility shall be excluded and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar LIBO Rate (as defined below) in respect of such New Term Loan Incremental Facility includes an interest rate a floor greater than the interest rate floor applicable to such initial Term the analogous existing Facility, such increased amount shall be equated to interest rate margin for purposes of determining whether an any increase to the applicable interest margin under the initial Term Facility analogous existing Facility. For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any Incremental Loan Commitments shall be requireddetermined by the Borrower and the applicable Incremental Lenders and shall be set forth in the applicable Joinder Agreement. (c) On any Increased Amount Date on which any Incremental Revolving Commitment or Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each lender with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) or an Incremental Term Loan Commitment (each, an “Incremental Term Lender” and together with the Incremental Revolving Lenders, collectively, the “Incremental Lenders”), to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereundernot already a Lender, and in such case the interest rate floor (but not the interest rate margin) applicable shall become a Lender hereunder with respect to such Term Facility Incremental Loan Commitment; provided that any financial institution that becomes an Incremental Lender that is not already a Lender hereunder shall be increased by such increased amount; (vii) reasonably satisfactory to the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans Administrative Agent and the liens securing Borrower and, with respect to any Incremental Revolving Facility, to the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit LoansL/C Issuer. (fd) The terms and provisions of the Incremental Loan Commitments shall be, except as set forth in the relevant Joinder Agreement and otherwise provided in this Section 2.22, identical to those of the applicable Loans and for purposes of this Agreement, any Incremental Loans or Incremental Loan Commitments shall be deemed to be Term Loans, Incremental Term Loans, Term Commitments, Incremental Term Loan Commitments, Revolving Loans, Incremental Revolving Loans, Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable. Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.25, and for the avoidance of doubt, this 2.22. (e) This Section 2.25 2.22 shall supersede any provisions in Section 10.7 or 10.1 Sections 2.13 and 9.08 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be amended by the Administrative Agent and the Loan Parties, if necessary, to provide for terms applicable to each Incremental Facility and/or Incremental Loan Commitment, as may be necessary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Rural/Metro Corp /De/)

Incremental Loans. (a) At any time or and from time to time after during the Closing DateAvailability Period, subject to the terms and conditions set forth herein, the Borrower may may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Loan Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively an “Incremental Revolving Loan Commitment” and, together with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”) to make revolving loans under the Revolving Loan Facility (any such increase, an “Incremental Revolving Loan Increase” and, together with the Incremental Term Loans, the “Incremental Loans”). Each ; provided that at the time of each such request and upon the effectiveness of each Incremental Commitment Amendment, (A) no Default has occurred and is continuing or shall be result therefrom and (B) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amountclause (A) above. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $100,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of remaining amount permitted pursuant to the end of foregoing clause (1). (b) Each notice from the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made Borrower pursuant to this Section 2.25); provided that in no event 2.21 shall set forth the New Revolving Credit Commitments exceed $30,000,000requested amount of the relevant Incremental Loan Commitment. Each such notice shall specify (A) the date (eachAny additional bank, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective4144-2392-2490 financial institution, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached elects to provide all or a portion of any Incremental Loan Commitment shall be reasonably satisfactory to the Borrower, the Administrative Agent, and with respect to Incremental Commitments may elect Revolving Loan Commitments, each Swingline Lender and each Issuing Bank (any such bank, financial institution, existing Lender or declineother Person being called an “Incremental Lender”) and, in its sole discretionif not already a Lender, shall become a Lender under this Agreement pursuant to provide an Incremental Amendment. Each Incremental Loan Commitment shall be effected by an amendment (it being understood that there is no obligation an “Incremental Amendment”) to approach any existing Lenders this Agreement and, as appropriate, the other Loan Documents, executed by STX, the Borrower, such Incremental Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Loan Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating theretounless it so agrees. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments in respect of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender Incremental Revolving Loan Commitment shall become Revolving Commitments (or in the case of any Incremental Revolving Loan Commitment to be provided by an existing Lender, an increase in such tranche shall make a Loan to the Borrower (a “New Term Loan”Lender’s Revolving Commitment) in an amount equal to its New Term Commitment of such tranche, under this Agreement and (ii) each New Incremental Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Loan Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments Commitment (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable facility under this Agreement. An Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.21. The effectiveness of any Incremental Amendment shall, unless otherwise agreed to by the Administrative Agent and for the avoidance Incremental Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Closing Date”) of doubt, this Section 2.25 shall supersede any provisions each of the conditions set forth in Section 10.7 or 10.1 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the contraryIncremental Closing Date). The proceeds of any Incremental Loans made pursuant to Incremental Loan Commitments will be used only for working capital and other general corporate purposes of the Borrower and its subsidiaries. (gd) The Loans and Commitments extended or established Upon each Incremental Revolving Loan Increase pursuant to this paragraph shall constitute Loans Section 2.21, (i) each Lender immediately prior to such increase will automatically and Commitments underwithout further act be deemed to have assigned to each Incremental Lender, and shalleach Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such Lend▇▇’▇ ▇articipations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Incremental Revolving Loan Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Lender (including each Incremental Lender) will equal such Lender’s Applicable Percentage and (ii) if, on the date of such Incremental Revolving Loan Increase, there are any Revolving Loans outstanding, such Revolving Loans shall be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Incremental Revolving Loan Increase), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.15. 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 (Seagate Technology Holdings PLC)

Incremental Loans. (a) At any time or from time to time after during the four year period following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new incremental revolving credit commitments (any such new commitmentsincremental revolving credit commitment, collectively with any Revolving Facility Increase, the an New Revolving Credit Incremental Loan Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term make incremental revolving credit loans (collectively with any Term Loan Increasesuch incremental revolving credit loans, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the an “Incremental CommitmentsLoans”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $50,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent Agent, the Issuing Lender and the Swing Line Lender, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating that the Borrower will share be in compliance on a pro forma CREDIT AGREEMENT – Page 66 basis with the Collateral financial covenants set forth in Section 8.15 both before and after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (C) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (D) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; ; (3E) each Incremental Loan Commitment (and the Incremental Commitments, as applicableLoans made thereunder) shall mature on the Revolving Credit Maturity Date, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered bear interest at a rate determined by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent applicable Incremental Lenders and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, Borrower and shall be subject to the satisfaction of the foregoing same terms and conditions, (a) each of conditions as the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender Loans; interest rate margins and/or unused fees with respect to any Incremental Loan Commitment may be higher than the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through interest rate margins and/or unused fees applicable to the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New then existing Revolving Credit Commitments; provided that if the interest rate margins and/or unused fees, as applicable, in respect of any Incremental Loan Commitment exceed the interest rate margins and/or unused fees, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New initial Revolving Credit Commitments of any tranche are effected through Facility, then the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such trancheinterest rate margins and/or unused fees, as applicable, for the initial Revolving Credit Facility shall be increased so that the interest rate margins and/or unused fees, as applicable, are equal to the interest rate margins and/or unused fees for such Incremental Loan Commitment (and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving CommitmentsIncremental Loans made thereunder); provided further that, in each case subject determining the interest rate margins and unused fees applicable to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions Incremental Loan Commitment and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New then existing Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term then existing Revolving Credit Commitments or any Incremental Loan and such initial Term Facility Commitment, in each case in the initial primary syndication thereof and the effects of any and all interest rate floors, shall be included and equated to interest rate (with original issue discount such upfront fees being equated to interest based on an assumed four-year life to maturity), (2) customary arrangement or commitment fees payable to any Arranger (or its affiliates) or to one or more arrangers (or their affiliates) in connection with the then existing Revolving Credit Commitments or to one or more arrangers (or their affiliates) of any Incremental Loan Commitment shall be excluded and (y3) any amendments to in the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to event that, at the time of such New Term Loan shall also be included in such calculations; provideddetermination, furtherthe Applicable Margin is determined based on a pricing grid, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount margins and unused fees shall be equated to interest rate measured for purposes of determining whether an increase this clause (E) by reference to each level of the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amountpricing grid; (viiF) the New Term Loans and/or New outstanding Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the liens securing Administrative Agent on the New Term Loans and/or New applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Loan Commitments) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Loan Commitment) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment); (G) except as provided above, all of the other terms and conditions applicable to such Incremental Loan Commitments shall, except to the extent otherwise provided in this Section 4.13, be identical to the terms and conditions applicable to the Revolving Credit Facility; (H) any Incremental Lender with an Incremental Loan Commitment shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and any Extensions of Credit made in connection with each Incremental Loan Commitment shall receive proceeds of prepayments on the same basis as the other Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans.made hereunder; (fI) Each such Incremental Loan Commitments shall be effected pursuant to one or more Lender Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and the applicable Incremental Lenders (which Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.254.13); and (J) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, and for without limitation, a resolution duly adopted by the avoidance board of doubt, this Section 2.25 shall supersede directors (or equivalent governing body) of each Credit Party authorizing such Incremental Loan) reasonably requested by Administrative Agent in connection with any provisions in Section 10.7 or 10.1 to the contrarysuch transaction. (gb) The Loans and Commitments extended or established pursuant to this paragraph Incremental Lenders shall constitute Loans and Commitments underbe included in any determination of the Required Lenders, and shallthe Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (c) On any Increased Amount Date on which any Incremental Loan Commitments become effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Loan Commitment shall become a Revolving Credit Lender hereunder with respect to such Incremental Loan Commitment.

Appears in 1 contract

Sources: Credit Agreement (Global Power Equipment Group Inc.)

Incremental Loans. (a) At any time or during the Revolving Commitment Period the Borrower may request from time to time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, from one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders or from other Eligible Assignees reasonably acceptable to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Bank, the Swingline Lender and the Swingline Borrower (but subject to the conditions set forth in clause (b) below) that the Total Revolving Commitments be increased by an aggregate amount not to exceed the Available Revolving Increase Amount (each such increase, an “Increase”); provided that the Borrower may not request an Increase on more than three occasions during (b) Each of the following shall be conditions precedent to any Increase of the Revolving Commitments in connection therewith: (i) any Increase shall be on the same terms (including the interest rate, and maturity date), as applicable, as, and pursuant to documentation applicable to, the Revolving Facility then in effect; provided that any such Increase may provide for terms (including interest rate) more favorable to such Increase lenders, if any existing Revolving Loans at the time of such Increase are also provided the benefit of such more favorable terms (and the consent of any existing Revolving Lender shall not be required to implement such terms); provided, further, that any fees shall be agreed between the Borrower and the lenders providing such Increase; (ii) the Borrower shall have consented delivered a written request for such Increase at least 10 Business Days prior to the requested establishment of such Increase (or such consent not to later date as may be unreasonably withheldreasonably approved by the Administrative Agent), which request shall set forth the amount and proposed terms of the Increase; (iii) each lender agreeing to such Person’s providing such Incremental Commitments if such Increase, the Borrower and the Administrative Agent shall have signed an Increase Joinder (any Increase Joinder may, with the consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating lenders agreeing to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other LendersIncrease, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower appropriate to effect effectuate the provisions of this Section 2.252.28 (including the preceding clause (ii))) and the Borrower shall have executed any Notes requested by any Lender in connection with the making of the Increase. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Increase Joinder reasonably satisfactory to the Administrative Agent, and for the avoidance amendments to this Agreement effected thereby, shall not require the consent of doubtany Lender other than the Lender(s) agreeing to establish such Increase; (iv) immediately after giving pro forma effect to such Increase and the use of proceeds thereof, each of the conditions precedent in Section 4.2(a) are satisfied; (v) immediately after giving pro forma effect to such Increase and the use of proceeds thereof, (A) no Default or Event of Default shall have occurred and be continuing at the time of such Increase, (B) the Borrower shall be in compliance with the financial covenants set forth in Section 6.1 hereof (except that the pro forma Consolidated Senior Net Leverage Ratio shall not exceed 0.50x less than the then-prevailing Consolidated Senior Net Leverage Ratio covenant level set forth in Section 6.1(a) (c) Upon the effectiveness of any Increase, (i) all references in this Agreement and any other Loan Document to the Revolving Loans shall be deemed, unless the context otherwise requires, to include such Increase advanced pursuant to this Section 2.25 shall supersede 2.28 and any provisions amendments effected through the Increase Joinder and (ii) all references in Section 10.7 or 10.1 this Agreement and any other Loan Document to the contrary. (g) Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Increase pursuant to this Section 2.28. The Revolving Loans and Revolving Commitments extended or established pursuant to this paragraph Section 2.28 shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. The Borrower shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected

Appears in 1 contract

Sources: Credit Agreement (Sprout Social, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing 2015 Restatement Effective Date prior to the Latest Maturity Date, the Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request the addition to this Agreement of (Ai) prior to the Revolving Termination Datean incremental revolving credit facility, one or more increases (ii) Incremental Securitization Refinancing Facilities (as defined below) in the amount form of Revolving Commitments a new tranche of term loans or an incremental revolving credit facility, or (a “Revolving Facility Increase”), (Biii) the establishment of one or more new revolving credit commitments tranches of term loans constituting Refinancing Indebtedness in respect of Existing Additional Senior Debt or Permitted First Priority Debt (any such new commitments, collectively with any Revolving Facility Increase, the an New Revolving Credit CommitmentsIncremental Senior Debt Refinancing Facility”), or any combination thereof (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental CommitmentsFacilities”); provided, however, that both (x) at the time of any such request and (y) upon the effectiveness of any such Incremental Facility, no Default shall exist and the Borrower shall, if a Financial Covenant Effectiveness Period is then occurring, be in compliance with Section 6.12 (calculated, in the case of clause (y), on a pro forma basis to give effect to (1) any borrowing under the Incremental Facility, (2) any substantially simultaneous repayments of Revolving Loans, Other Revolving Loans or Existing Additional Senior Debt, and (3) in the case of any Incremental Securitization Refinancing Facility, any substantially simultaneous repayments or repurchases of Third Party Interests or Indebtedness incurred under Section 6.01(a)(xvi)(A) (and the related repurchases of Securitization Assets and cessation of future purchases of Securitization Assets)) and provided, further, that no Split-Priority Term Loan Debt may be incurred as an Incremental Facility hereunder. Each The Incremental Commitment Facilities shall (i) be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with excluding the aggregate principal amount of any Incremental NotesSecuritization Refinancing Facilities) not in excess of $300,000,000, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment and of security with existing the other Loans, (iii) if such Incremental Facility is a term loan facility, amortize in a manner, and be subject to mandatory prepayments (if any) on terms, acceptable to the Agents, and mature no earlier than the latest maturity date of any outstanding Term Loans (if any), (iv) bear interest at the market interest rate, as determined at the time such Incremental Facility becomes effective, (v) have such other pricing as may be agreed by the Borrower and the Administrative Agent and (vi) otherwise be treated hereunder no more favorably than, in the case of revolving facilities, the Revolving Loans and Revolving Credit Commitments, and in the case of term loans, the outstanding Term Loans (if any); provided, that the terms and provisions applicable to any Incremental Facility may provide for additional or different financial or other covenants applicable only during periods after the Latest Maturity Date that is in effect on the date of effectiveness of such Incremental Facility. At no time shall the sum of (i) the aggregate amount of loans outstanding under the Incremental Facilities at such time, (ii) the total Revolving Exposure at such time, (iii) the outstanding Term Loans at such time, (iv) the Other Revolving Exposures at such time and (v) the Additional Senior Debt at such time exceed the Borrowing Base Amount in effect at such time, and the liens securing proceeds of the New Term Loans and/or New Revolving Credit Loans will rank pari passu with Incremental Facilities shall be used solely for the liens securing purposes set forth in Section 5.10 and the existing Term Loans preamble, provided that the proceeds of Incremental Securitization Refinancing Facilities shall be used solely for the purposes specified in the penultimate sentence of this Section 2.21 and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent proceeds of any Incremental Senior Debt Refinancing Facility shall be used solely to repay Existing Additional Senior Debt or Permitted First Priority Debt and interest and other Lendersamounts relating thereto that can be financed with Refinancing Indebtedness relating to such Existing Additional Senior Debt or Permitted First Priority Debt, effect as the case may be. Such notice shall set forth the requested amount and class of Incremental Facilities, and shall offer each Lender the opportunity to offer a commitment (the “Incremental Commitment”) to provide a portion of the Incremental Facility by giving written notice of such amendments offered commitment to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower within a time period (the “Offer Period”) to be specified in the Borrower’s notice; provided, however, that no existing Lender will be obligated to subscribe for any portion of such commitments. In the event that, at the expiration of the Offer Period, Lenders shall have provided commitments in an aggregate amount less than the total amount of the Incremental Facility initially requested by the Borrower, the Borrower may request that Incremental Facility commitments be made in a lesser amount equal to such commitments and/or shall have the right to arrange for one or more Additional Lenders to extend commitments to provide a portion of the Incremental Facility in an aggregate amount equal to the unsubscribed amount of the initial request; provided that the Additional Lenders shall be offered the opportunity to provide the Incremental Facility only on terms previously offered to the existing Lenders pursuant to the immediately preceding sentence. Commitments in respect of Incremental Facilities will become Commitments under this Agreement pursuant to an amendment to this Agreement (such an amendment, an “Incremental Facility Amendment”) executed by each of the Borrower and each Subsidiary Loan Party, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 of this Agreement as in effect on the provisions 2015 Restatement Effective Date, such Incremental Facility being permitted under each indenture or other agreement governing any Material Indebtedness and such other conditions as are specified in the applicable Incremental Facility Amendment. For purposes of this Section 2.252.21, “Incremental Securitization Refinancing Facility” means any Incremental Facility to the extent that the proceeds of the Loans incurred thereunder are used by the Borrower or a Subsidiary Guarantor on the date such Loans are made to repay or repurchase Third Party Interests or Indebtedness incurred pursuant to Section 6.01(a)(xvi)(A) (or repurchase Securitization Assets that have been sold, conveyed or otherwise transferred pursuant to any Securitization), provided that, upon such repayment or repurchase, (x) no Third Party Interests or Indebtedness incurred pursuant to Section 6.01(a)(xvi)(A) remains outstanding, (y) all commitments of the Borrower and for the Subsidiaries to sell, convey or otherwise transfer Securitization Assets pursuant to any Securitization are terminated and (z) all Securitization Assets that remain outstanding and were previously sold, conveyed or otherwise transferred pursuant to any Securitization are repurchased by the Borrower or a Subsidiary Guarantor. For the avoidance of doubt, this Section 2.25 Securitization Refinancing Indebtedness shall supersede any provisions in Section 10.7 or 10.1 to the contrarynot constitute an Incremental Facility. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Rite Aid Corp)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the The Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each Incremental Commitment shall be ) or the increase of the Dollar Revolving Commitments hereunder, in an aggregate principal amount that is for all such New Term Loan Commitments and increases of the Dollar Revolving Commitments not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein(i) $150,000,000 (each such establishment or increase, the a “Cash-Capped Incremental Commitments shall not exceed, (xFacility”) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (yii) up to an additional amount of (each such establishment or increase, a “Ratio-Based Incremental Commitments so long as in Facility”) if the case of this clause (y), (1) the Senior Secured First Lien pro forma Consolidated Total Leverage Ratio is less than 2.75:1.00 (and, for the avoidance of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are doubt, for any unsecured Ratio-Based Incremental Notes outstandingFacility, the such Consolidated Total Net Debt Leverage Ratio would shall be no greater than 6.00:1.00, in each casecalculated as though any Dollar Revolving Commitments to be incurred pursuant to this Section 2.25 were fully drawn), as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000Test Period. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental the New Term Loan Commitments or increase of the Dollar Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocationsAgent; provided that (wi) any Lender offered or approached to provide all or a portion of any New Term Loan Commitments or increase of the Incremental Dollar Revolving Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental New Term Loan Commitments if such consent or increase of the Administrative Agent, the Issuing Lender Dollar Revolving Commitments and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (yii) with respect to any New Term Commitments, any Affiliated Lender providing a Loan Commitments or increases to the Dollar Revolving Commitments established pursuant to this Section 2.25 will count towards the Ratio-Based Incremental Facility prior to reducing the maximum amount under the Cash-Capped Incremental Facilities (to the extent permitted by the pro forma calculation of the Consolidated Total Leverage Ratio required prior to the incurrence of such Ratio-Based Incremental Facility). (b) Such New Term Commitment shall be subject to Loan Commitments or increase of the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Dollar Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that (1i) no Default the conditions set forth in Section 5.2 were satisfied or Event of Default shall exist waived on such Increased Amount Date before or after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, Loan Commitments and to the extent applicable, making of any Tranche of New Term Loans pursuant thereto or to such increase of the Administrative Agent Dollar Revolving Commitments and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded after giving effect to any transaction consummated in the Registerconnection therewith; (4ii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 (assuming a borrowing as of the maximum amount end of the most recently ended Test Period; (iii) the proceeds of any New Term Loans available shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions and Investments permitted under Section 7.8); (iv) the New Term Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Facilities after giving effect to such Incremental Commitment, Guarantee and any Incremental Commitments previously made pursuant to this Section 2.25, and Collateral Agreement; (v) the New Term Loans shall share ratably in any event, after giving effect mandatory prepayments of the existing Term Loans; (vi) the maturity date of New Term Loans thereof shall not be earlier than the Term Loan Maturity Date and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of the Term Loans; (vii) all terms and documentation with respect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental New Term Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase differ from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender those with respect to the New Revolving Credit Commitments Term Loans shall be reasonably satisfactory to the Administrative Agent (except to the extent permitted by clause (vi) of this Section and all matters relating thereto. the last sentence of this paragraph); (cviii) Any such New Term Loans or New Term Loan Commitments or increase of the Dollar Revolving Loans Commitments shall be effected through the establishment of pursuant to one or more new revolving credit commitments Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or new more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction, including any supplements or amendments to the Security Documents providing for such New Term Loans to be secured thereby. Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from those of the Term Loans outstanding on the date on which such New Term Loans are made shall be designated as a separate tranche (a “Tranche”) of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement, except as the relevant Joinder Agreement otherwise provides. For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any New Term Loan shall be determined by the Borrower and the applicable lenders of New Term Loans (each, a “New Term Lender”) and shall be set forth in the applicable Joinder Agreement. (c) On any Increased Amount Date on which any New Term Loan Commitments or increase of any tranche are effected (including through any Term Loan Increase)the Dollar Revolving Commitments becomes effective, subject to the satisfaction of the foregoing terms and conditions, (i) each lender with a New Term Lender Loan Commitment or an increase of such tranche shall make a Loan to the Borrower Dollar Revolving Commitments (each, a “New Term LoanLender”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the such New Term Loan Commitment of or such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction increase of the foregoing terms and conditions, (i) each New Dollar Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, . (d) The terms and provisions of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit LendersLoan Commitments of any Tranche shall be, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth hereinin the relevant Joinder Agreement, to the extent not identical to those of the applicable Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity and for purposes of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increasethis Agreement, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which Commitments shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New be Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) . Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Wesco Aircraft Holdings, Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more establishment of increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, an “Incremental Loan Commitment”) for the “New advancing of incremental Loans under the Revolving Credit CommitmentsFacility (each such advance of Loans under the Incremental Loan Commitment, an “Incremental Loan”), ; provided that (Ca) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the total aggregate principal amount of all such Incremental Loan Commitments shall not (as of any Incremental Notes, date of incurrence thereof) exceed an amount equal to the result of (i) $100,000,000 plus 500,000,000.00 minus (yii) an additional the aggregate amount of Indebtedness incurred pursuant to Section 9.3(f), and (b) the minimum principal amount of each such Incremental Commitments so long as in Loan Commitment shall not be less than $25,000,000.00 or, if less, the case of this remaining amount permitted pursuant to the foregoing clause (ya), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent (or such shorter period acceptable to the Administrative Agent Agent). The Borrower may invite existing Lenders, any Affiliate of any Lender and/or any Approved Fund, and/or any other Eligible Assignee reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swing Loan Lender and (B) the identity of Issuing Lender shall consent to each existing Incremental Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes providing any portion of an Incremental Loan Commitment (such consent not to be unreasonably withheld). Any proposed Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender offered or approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (a) any Incremental Loan Commitment, (b) the making of any Incremental Loans pursuant thereto on the applicable Increased Amount Date and (c) any Permitted Acquisition consummated in connection therewith; (ii) the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the Maximum Consolidated Net Leverage Ratio based on the financial statements most recently delivered pursuant to Section 8.1 both before and after giving effect (on a pro-forma basis) to (a) any Incremental Loan Commitment, (b) the making of any Incremental Loans pursuant thereto on the applicable Increased Amount Date and (c) any Permitted Acquisition consummated in connection therewith; (iii) each of the representations and warranties contained in Article 7 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to a Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (iv) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental CommitmentsLoan Commitments and Incremental Loans) reasonably requested by Administrative Agent in connection with any such transaction; and (v) each proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement. (b) Each Incremental Loan Commitment (and Incremental Loan) shall (i) constitute Obligations of the Borrower and, as applicable; (2) to the Incremental Commitments will share in extent the Collateral other Obligations are guaranteed, shall be guaranteed with the other Obligations on a pari passu basis; , and (3ii) be part of the Incremental Commitments, as applicableRevolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be effected pursuant entitled to one or more Joinder Agreements (eachfees, an “Incremental Joinder Agreement”) executed and delivered by in each case at the Borrower, rate applicable to the New Revolving Credit Lender or New Term Lender, as applicableFacility, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall otherwise be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing same terms and conditions, (a) each of conditions as the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating theretoFacility. (c) Any New Term Loans or New Revolving Loans effected through Unless otherwise agreed by the establishment applicable Incremental Lenders (provided that no such agreement shall allow the Incremental Loan Commitments to be terminated prior to termination of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New the existing Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to each Incremental Loan shall receive proceeds of prepayments on the satisfaction of same basis as the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loansoriginal aggregate funded amount thereof). (d) The outstanding Revolving Credit Loans and Ratable Shares of Swing Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent shall notify Lenders promptly upon receipt of on the Borrower’s notice of each applicable Increased Amount Date and in respect thereof (x) among the tranche of New Lenders to the Revolving Credit Commitments Facility (including the Incremental Lenders providing Incremental Loan Commitments) in accordance with their revised Ratable Shares (and the New Lenders to the Revolving Credit Facility (including the Incremental Lenders of providing Incremental Loan Commitments) agree to make all payments and adjustments necessary to effect such tranche or the tranche of New Term Commitments reallocation and the New Term Lenders of Borrower shall pay any and all costs required pursuant to Section 5.10 in connection with such tranche, reallocation as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in if such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25reallocation were a repayment). (e) The terms, provisions and documentation of the New Term Loans and New Term Incremental Loan Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and effected pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.10, and without the consent of any other Lenders. (f) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for the avoidance of doubt, any purposes under this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contraryAgreement. (g) The Loans On each Increased Amount Date, subject to the foregoing terms and Commitments extended or established pursuant conditions, each Incremental Lender with an Incremental Loan Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to this paragraph shall constitute Loans and Commitments under, and shallsuch Incremental Loan Commitment.

Appears in 1 contract

Sources: Credit Agreement (Factset Research Systems Inc)

Incremental Loans. (a) At any time or from time to time after the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect from time to time, request (A) prior Incremental Loan Commitments in an amount not to exceed the Revolving Termination Date, Incremental Loan Amount from one or more increases in Incremental Lenders, all of which must be Eligible Assignees. Such notice shall set forth (i) the amount of Revolving the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a “Revolving Facility Increase”minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (Bii) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is delivered an Affiliate of a Lender or a Related Fund). The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and (B) such other documentation as the identity Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Incremental Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated . The terms and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion provisions of the Incremental Commitments may elect Loans shall be identical to those of the Loans except as otherwise set forth herein or decline, in its sole discretion, to provide an the Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) Loan Assumption Agreement. Without the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such prior written consent of the Administrative Agent, (i) the Issuing Lender and Swingline Lender would final maturity date of any Other Loans shall be required under Section 10.6 for an assignment no earlier than the Maturity Date, (ii) the average life to maturity of the Other Loans or Commitments shall be no shorter than the remaining average life to maturity of the Loans, (iii) if the initial yield on such Other Loans (as reasonably determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans (taking into account any interest rate floors with respect to such Person, Other Loans) and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Loans and (B) four) exceeds the Applicable Margin then in effect for Eurodollar Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans and (iv) the other terms and documentation in respect of such Other Loans, to the extent not consistent with respect the Term Facility, shall be reasonably satisfactory to New Term Commitmentsthe Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Affiliated Lender providing Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Incremental Loans and Other Loans shall have the same guarantees as, and be secured on a New Term pari passu basis with, the Loans. (c) Notwithstanding the foregoing, no Incremental Loan Commitment shall be subject to become effective under this Section 2.22 unless (i) on the same restrictions date of such effectiveness, (x) the representations and warranties set forth in Section 10.6(cArticle III and in each other Loan Document shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans on and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (1or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date and (y) at the time of and immediately after the giving effect to the Borrowing of Incremental Loans, no Default or Event of Default shall exist have occurred and be continuing, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Borrower’s Total Secured Leverage Ratio shall not exceed 2.50:1.00 on such Increased Amount Date a pro forma basis after giving effect to such Incremental CommitmentsLoan Commitment, as applicable; (2) the incurrence of the Incremental Commitments will share Loans thereunder the use of proceeds thereof and the Administrative Agent shall have received a certificate to that effect showing such calculations in the Collateral on reasonable detail dated such date and executed by a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by Responsible Officer of the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, (iii) all fees and expenses owing to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing Lenders in respect of such increase shall have been paid, (iv) except as otherwise specified in the applicable Incremental Loans Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01 and (v) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages on the Real Estate Collateral Properties as security for the Obligations, as determined by the Administrative Agent in its reasonable discretion, (x) the applicable Loan Party to any Mortgages shall have entered into, and delivered to the Administrative Agent, at the Collateral direction and in the sole discretion of the Administrative Agent a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent, (y) the Borrower shall have caused to be delivered to the Administrative Agent for the benefit of the Lenders an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of such Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances that may then or thereafter take priority over the Lien of such Mortgages (other than any Defaulting Lender). Permitted Encumbrances) and (bz) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders Borrower shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lendershave delivered, at the principal amount thereofrequest of the Administrative Agent, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition Administrative Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of such New Revolving Commitments to Mortgages as security for the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term LoansObligations. (d) The Each of the parties hereto hereby agrees that the Administrative Agent shall notify Lenders promptly upon receipt of may, in consultation with the Borrower’s notice , take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Increased Amount Date and in respect thereof (x) Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the tranche of New Revolving Credit Commitments preceding sentence shall be subject to Section 2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, other economic consequences thereof shall be as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase set forth in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth hereinIncremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not identical to the Term Loans or Revolving Other Loans, as applicable, shall the scheduled amortization payments under Section 2.11(a)(i) required to be reasonably satisfactory to Administrative Agent. In any event: (i) made after the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence making of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Incremental Loans shall be no earlier than ratably increased by the original Term Maturity Date aggregate principal amount of such Incremental Loans and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans further increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the for all Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect necessary to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of avoid any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified reduction in the applicable Incremental Joinder Agreement; (vi) with regards amortization payments to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and were entitled before such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loansrecalculation. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Term Loan Credit Agreement (Supervalu Inc)

Incremental Loans. (a) At any time or The Borrower may from time to time after the Closing Date, the Borrower may Effective Date by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan or revolving commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Loan Commitments”) hereunder, in an aggregate amount for all such New Loan Commitments not to exceed the sum of (i) $400,000,000 (the “Cash-Capped Incremental Facility”) plus (ii) an unlimited amount that could be incurred while at the same time remaining in compliance with the Senior Incurrence Test on a pro forma basis (the “Senior Incurrence Incremental Facility”) and (iii) an amount equal to all voluntary prepayments and repurchases of Term Commitments” Loans and Revolving Loans (to the extent accompanied by a permanent reduction in commitments therefor) made after the Effective Date (other than (x) any prepayments required as a condition precedent to the Extension Amendment and (ii) any prepayment, repurchase, or commitment reduction financed with the proceeds of long term indebtedness) (the “Prepay Incremental Facility”, and together with the Cash-Capped Incremental Facility and the New Term Commitments, collectively with any New Revolving Credit CommitmentsSenior Incurrence Incremental Facility, the “Incremental CommitmentsAmount”). Each Incremental Commitment shall be in an aggregate principal amount , provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental any New Loan Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made established pursuant to this Section 2.25); provided that 2.25(a) (i) will count towards the Prepay Incremental Facility prior to the Senior Incurrence Incremental Facility (to the extent permitted by the pro forma calculation of the Senior Incurrence Test required prior to the incurrence of such Senior Incurrence Incremental Facility) prior to reducing the maximum amount under the Cash-Capped Incremental Facility and (ii) may be incurred under any portion of the Incremental Amount, and proceeds from any such incurrence may be utilized in no event shall a single transaction by first calculating the New Revolving Credit Commitments exceed $30,000,000incurrence under the Prepay Incremental Facility, then calculating incurrence under the Senior Incurrence Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental Facility. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental the New Loan Commitments shall be effective, which shall be a date not less than 5 Business Days (or such shorter period as the Administrative Agent may agree in its reasonable discretion) after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocationsAgent; provided that (w) any Lender offered or approached to provide all or a portion of the Incremental any New Loan Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment such New Loan Commitment; provided that, at the request of the Borrower, the Joint Lead Arrangers (it being understood that there is no obligation in consultation with the Borrower), will use their commercially reasonable efforts to approach any existing Lenders obtain financial institutions (reasonably satisfactory to the Borrower) to provide any Incremental Commitment), (x) a commitment to the Administrative Agent, extent necessary to satisfy the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such PersonBorrower’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 request for an assignment of New Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender prevailing market conditions and payment of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitmentscustomary fees. Such Incremental New Loan Commitments shall become effective, effective as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments, as applicableNew Loan Commitments and to the making of any tranche of New Loans pursuant thereto and after giving effect to any Permitted Acquisition consummated in accordance therewith; (2) the Incremental Commitments will share in proceeds of any New Loans shall be used for general corporate purposes of the Collateral on a pari passu basisBorrower and its Subsidiaries (including Permitted Acquisitions); (3) the Incremental Commitments, as applicable, New Loans shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded share ratably in the RegisterCollateral; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 New Loans that are term loans (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term LoanLoans”) shall share ratably in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction mandatory prepayments of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the existing Term Loans. ; (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y5) in the case of each notice any New Term Loans, the maturity date thereof shall not be earlier than the latest maturity date of any Term Loan Tranche and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of the Term Loans that are not New Loans; (6) in the case of any New Loans that are revolving loans (“New Revolving Loans”) the maturity date thereof shall be the then latest maturity date of any Revolving Lender Tranche and such New Revolving Loans shall not require any scheduled commitment reductions prior to such maturity date; (7) the New Revolving Loans shall share ratably in any mandatory prepayments of the existing Revolving Loans; (8) all terms and documentation with respect to an increase in any New Loans which differ from those with respect to the Loans under the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, Facility shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallthe

Appears in 1 contract

Sources: Credit Agreement (Allison Transmission Holdings Inc)

Incremental Loans. (a) At any time or from time prior to time after the Closing Commitment Increase Expiration Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to an “Incremental Revolving Credit Commitment” and, together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make incremental revolving credit loans (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental NotesTerm Loan, $100,000,000 plus (y) an additional amount of the “Incremental Commitments so long as in the case of this clause (yLoans”), ; provided that (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $200,000,000 and (2) if there are any unsecured the total aggregate amount for each Incremental Notes outstanding, Loan Commitment (and the Consolidated Total Net Debt Leverage Ratio would Incremental Loans made thereunder) shall not be no greater less than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum minimum principal amount of Loans available under $25,000,000 (or such lesser amount to which the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25Administrative Agent may agree); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent (and, in the case of an Incremental Revolving Credit Commitment, the L/C Issuer and Swingline Lender), to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Commitments, as applicable; Loan Commitment and (2) the making of any Incremental Commitments Loans pursuant thereto; (B) the Administrative Agent and the Lenders shall have received from the Borrower an officer’s compliance certificate demonstrating that the Borrower will be in compliance on a pro forma basis with the financial covenants set forth in Section 7.11 both before and after giving effect to (1) any Incremental Loan Commitment and (2) the making of any Incremental Loans on the Increased Amount Date pursuant thereto; (C) the proceeds of any Incremental Loans shall be used in compliance with Section 6.11; (D) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall share in the Collateral guarantees and security, if any, supporting the other extensions of credit hereunder on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice to any Revolving Lender with respect to an increase in Incremental Term Loan (the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) terms of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental relevant Lender Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall):

Appears in 1 contract

Sources: Credit Agreement (Meredith Corp)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit incremental term loan commitments (any such new commitmentsincremental term loan commitment, collectively with any Revolving Facility Increase, the an New Revolving Credit CommitmentsIncremental Loan Commitment), (C) prior to the Term Maturity Date, the establishment of make one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new additional term loans (collectively with any Term Loan Increasesuch additional term loan, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the an “Incremental CommitmentsLoan”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any all such Incremental NotesLoans shall not exceed $15,000,000, $100,000,000 plus collectively, (y) an additional the aggregate principal amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities then outstanding after giving effect to such Incremental Commitments Loans shall not exceed $165,000,000 and any (z) the aggregate principal amount of each Incremental Commitments previously Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to this Section 2.25the foregoing clauses (x) and (y); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent (or such shorter period as may be agreed to by the Administrative Agent and Agent). The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Eligible Assignee, to provide an Incremental Loan Commitment (B) the identity of each existing Lender or other Person that is any such Person, an Assignee (each“Incremental Lender”); provided that, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes if any portion of such Incremental CommitmentsLender is Standard General, any Incremental Loans made by it shall be allocated and subject to the amounts of restrictions set forth in Section 10.9(g) as if such allocations; provided that (w) any Incremental Loans were purchased by it pursuant to Section 10.9(g). Any proposed Incremental Lender offered or approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (x) any Incremental Commitments, as applicable; Loan Commitment and (2y) the making of any Incremental Commitments will share Loans pursuant thereto; (ii) each of the representations and warranties contained in Article V shall be true and correct in all material respects, except to the Collateral extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (iii) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions, but excluding prepayments of any Indebtedness incurred under Section 7.1(1) (unless accompanied by a permanent reduction of commitments)); (iv) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term terms of the Incremental Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified shall be set forth in the applicable relevant Incremental Joinder Agreement; (vi) with regards to any New Term LoanAmendment, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallprovided that:

Appears in 1 contract

Sources: First Lien Term Loan Credit Agreement (Turning Point Brands, Inc.)

Incremental Loans. In addition to borrowings of Tranche I Revolving Loans, Tranche I Term Loans and Tranche II Term Loans specified in Section 2.01(a), (ab) At and (c), respectively: (i) at any time or and from time to time after during the Closing Revolving Availability Period, the Borrower may request that the Lenders offer to enter into commitments to make Tranche II Revolving Loans to the Borrower; and (ii) at any time and from time to time prior to the Tranche III Term Loan Availability Date, the Borrower may request that the Lenders offer to enter into commitments to make Tranche III Term Loans to the Borrower in Dollars; it being understood in each case that such offer may be made by written notice any financial institution that is to become a Lender hereunder in connection with the making of such offer under this paragraph (e), so long as the Administrative Agent elect shall have consented to request such financial institution being a Lender hereunder (A) prior to such consent shall not be unreasonably withheld). In the Revolving Termination Date, event that one or more increases of the Lenders offer, in their sole discretion, to enter into such commitments, and such Lenders and the Borrower agree as to the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit such commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior that shall be allocated to the Term Maturity Daterespective Lenders making such offers, as to the establishment of one or more new term loan commitments which may fees (if any) to be of payable by the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” Borrower in connection therewith and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually Applicable Rate and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1Tranche III Term Loans) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstandingamortization relating thereto, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00Borrower, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated Lenders shall execute and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide deliver an Incremental Commitment (it being understood that there is no obligation Loan Agreement and such Lenders shall become obligated to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of make Tranche II Revolving Loans or Commitments to such Person, (y) with respect to New Tranche III Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental CommitmentsLoans, as applicable; (2) , under this Agreement in an amount equal to the Incremental amount of their respective Tranche II Revolving Commitments will share in the Collateral on a pari passu basis; (3) the Incremental or Tranche III Term Loan Commitments, as applicable, shall as specified in such Incremental Loan Agreement. The Incremental Loans to be effected made pursuant to one or more Joinder Agreements (each, an “any Incremental Joinder Agreement”) executed and delivered Loan Agreement in response to any such request by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause deemed to be paid, all fees and expenses owing in respect a separate "Series" of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Tranche II Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New or Tranche III Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit CommitmentsLoans, as applicable, for all purposes of this Agreement. On Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Commitments entered into pursuant to any Increased Amount Date on which request specified above (and, accordingly, the minimum aggregate principal amount of any New Series of Incremental Loans) shall be $50,000,000, (ii) the aggregate outstanding principal amount of Incremental Loans of all Series, together with the aggregate unutilized Incremental Commitments of all Series, shall not exceed $200,000,000 at any time, (iii) the Tranche III Term Loan Commitments of any tranche are effected (including through any Series shall terminate on the earlier of the Tranche III Term Loan IncreaseAvailability Date and the date 30 days after the date of the respective Incremental Loan Agreement for such Series and (iv) in no event shall the Tranche III Term Loan Agreement for any Series of Tranche III Term Loans provide for the final maturity of the Tranche III Term Loans of such Series to be later than December 1, 2004, nor shall such Tranche III Term Loan Agreement provide for amortization of the Tranche III Term Loans of such Series at a rate faster (i.e. earlier) than the rate of amortization of the Tranche I Term Loans (the determination of whether or not such amortization is faster to be made by the Administrative Agent). Following agreement by the Borrower and one or more of the Lenders as provided above, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise conditions set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall,

Appears in 1 contract

Sources: Credit Agreement (SCV Epi Vineyards Inc)

Incremental Loans. (a) At The Borrower may at any time or and from time to time after the Closing Date, the Borrower may Date by written notice to the Administrative Agent elect (whereupon the Administrative Agent shall make such notice available to each of the Lenders) request (A) prior to the Revolving Termination Date, one or more increases in additional new revolving loan tranches (an “Incremental Loan”) increasing the aggregate amount of Revolving Commitments the commitments hereunder (each such increase, a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Commitment Increase”) in an aggregate amount not to exceed $250,000,000 from any existing Lender or an Additional Incremental Lender (which Additional Incremental Lender shall become a separate tranche “Lender” hereunder subject to the prior consent of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” Administrative Agent and the New Term CommitmentsBorrower, collectively with any New Revolving Credit Commitmentssuch consent not to be unreasonably withheld, the “Incremental Commitments”conditioned or delayed). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such written notice shall specify specify: (Ai) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments the Commitment Increase shall be effectiveeffective (the “Loan Increase Effective Date”), which shall be a date not less than ten (10) Banking Days after the date on which such notice is delivered to the Administrative Agent Agent, (ii) the amount of such proposed Commitment Increase (which shall not exceed an aggregate of $250,000,000 for all Commitment Increases), and (Biii) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit including each Additional Incremental Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any each portion of such Commitment Increase and related Incremental Commitments, Loan be allocated and the amounts amount of each such allocations; provided that (w) allocation. No existing Lender will have any Lender approached obligation to provide all accept or a make any portion of the any Incremental Commitments may elect Loan or declineto make any Loan associated with any Commitment Increase. Each Lender, in its sole discretion, to provide an Incremental may either grant or deny any increase in its respective commitment. (b) A Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender Increase shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent become effective as of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Loan Increase Effective Date; provided that each of the following conditions precedent is satisfied: (1i) no Default or Event of Default shall exist on such Increased Amount have occurred and be continuing or would result from any borrowing to be made as of the Loan Increase Effective Date after giving effect or otherwise with respect to such Incremental Commitments, as applicable; the Commitment Increase; (2ii) the Incremental Commitments will share in representations and warranties made by the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, Borrower herein shall be effected pursuant to one true and correct in all material respects (or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and in all respects to the extent applicableotherwise qualified by materiality or Material Adverse Effect) on and as of the Loan Increase Effective Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date (in which event such representations and warranties shall have been true and correct in all material respects (or in all respects to the Administrative Agent extent otherwise qualified by materiality or Material Adverse Effect) on and the Issuing Lender and the Swingline Lender, or another form as of incremental amendment, each of which shall be recorded in the Register; such earlier date); (4iii) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans have delivered to the Administrative Agent, the Collateral Agent a certificate of a Responsible Officer certifying clauses (i) and the Lenders (other than any Defaulting Lenderii).; and (biv) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Commitment Increase has been accepted by one or more Lenders shall assign to each of the New Revolving Credit or Additional Incremental Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments The terms and conditions of any tranche are effected (including through any Term Incremental Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its a Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche Increase shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any eventfollows: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche on and after each Loan Increase Effective Date, each Lender (including Additional Incremental Lender(s)) shall be no shorter than obligated, to the Weighted Average Life extent of its commitment, in accordance with the requirements set forth in this Agreement to Maturity provide Loans to the Borrower under each Incremental Loan subject to the Borrower’s compliance with the terms and conditions of the then outstanding Term Loans on the date of incurrence of such New Term this Agreement applicable to all Loans, including with respect to borrowing procedures and conditions precedent to all Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans each Commitment Increase shall be no earlier than the original Term Maturity Date in a minimum amount of $5,000,000 and (B) the final maturity date in integral multiples of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date;$1,000,000 in excess thereof; and (iii) (A) in the case of a Term Loan Increase, any New Term Loans each Commitment Increase shall be on the same terms and documented pursuant to an incremental joinder agreement (the same documentation as the Term Loans increased thereby and (B“Incremental Joinder”) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant reasonably satisfactory to the same documentation as Administrative Agent, executed by the Revolving Loans Borrower, the Administrative Agent and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing Lender making such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount DateLoan. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable The Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.5. In addition, and for the avoidance of doubtunless otherwise specifically provided herein, all references in this Section 2.25 Agreement or any other Credit Document to Loans shall supersede any provisions in Section 10.7 or 10.1 be deemed to the contraryinclude a reference to Incremental Loans that are Loans made pursuant to this Agreement. (gd) Prior to each respective Loan Increase Effective Date, the Administrative Agent shall receive from each Additional Incremental Lender an administrative questionnaire in the form reasonably satisfactory to the Administrative Agent or, in the case of an existing Lender, an update to such administrative questionnaire and the Administrative Agent shall adjust each Lender’s Pro Rata Share to account for each such Lender and/or Additional Incremental Lender and each Commitment Increase and related Incremental Loan. (e) The Incremental Loans and Commitments extended or Commitment Increases established pursuant to this paragraph Section 2.5 shall constitute Loans and Commitments for all purposes under, and shall be entitled to all the rights, benefits and remedies afforded by this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably, on a pari passu basis, from all security interests created by each Pledge Agreement and the guarantees of the Guarantors. The Obligors shall take any actions and execute and deliver any instrument reasonably required by the Administrative Agent to evidence and ensure that the Liens and security interests granted by the Pledge Agreements extend to and benefit the Incremental Loans and continue to be effective and perfected following the establishment of any such Incremental Loan or Commitment Increase. (f) Each Lender providing an Incremental Loan or a Commitment Increase on the Loan Increase Effective Date shall make a Loan, the proceeds of which will be used to prepay the Loans of the other Lenders immediately prior to such Loan Increase Effective Date, so that, after giving effect thereto, the Loans outstanding are held by the Lenders pro rata based on their Individual Commitments after giving effect to such Loan Increase Effective Date. If there is a new borrowing of Loans on such Loan Increase Effective Date, the Lenders after giving effect to such Loan Increase Effective Date shall make such Loans in accordance with Article 3.

Appears in 1 contract

Sources: Loan Agreement (Royal Gold Inc)

Incremental Loans. (a) At On no more than three (3) occasions, at any time or from time prior to time after the Closing Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more term loan commitments (any such term loan commitment, a “Term Loan Commitment”) to the Revolving Termination Datemake one or more term loans (any such term loan, a “Term Loan”); or (ii) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Term Loans, the “Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (yLoans”), ; provided that (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $50,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent Agent, the Issuing Lenders and the Swingline Lender, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any proposed Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Commitments, as applicable; Loan Commitment and (2) the making of any Incremental Commitments will share in Loans on such Increased Amount Date pursuant thereto; (B) each Incremental Loan Commitment (and the Collateral Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (bC) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice to any Revolving Lender with respect to an increase in Term Loan (the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) terms of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental relevant Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall):

Appears in 1 contract

Sources: Credit Agreement (Apogee Enterprises, Inc.)

Incremental Loans. (a) At any time or from time to time after following the Closing DateDate (but not to exceed five (5) times in the aggregate during the term of this Agreement), the Borrower Parent (on behalf of the Borrowers) may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”). Each Incremental Commitment shall be in an ; provided that (1) the total aggregate principal amount that is for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed $150,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $5,000,000 individually and in integral 10,000,000 or whole multiples of $1,000,000 in excess of that amount. Notwithstanding anything thereof or, if less, the remaining amount permitted pursuant to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this foregoing clause (y1), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes Borrowers propose that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrowers may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Collateral Administrative Agent and the Lenders shall have received from the Parent an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrowers are in compliance with the financial covenants set forth in Section 9.15, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) the proceeds of any Incremental Loans shall be used by the Borrowers (i) to finance Capital Expenditures, Restricted Payments permitted hereunder, Investments permitted hereunder and Permitted Acquisitions, (ii) to pay fees, commissions and expenses in connection with the transactions contemplated by such Incremental Loans and (iii) for working capital and general corporate purposes of the Borrowers and their Subsidiaries; (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrowers and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (bF) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice to any Revolving Lender with respect to an increase in Incremental Term Loan (the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) terms of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental relevant Lender Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall):

Appears in 1 contract

Sources: Credit Agreement (Mitel Networks Corp)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower Company may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment which may be part of an existing tranche, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Commitments (a Commitments, an Incremental Revolving Facility Increase”)Commitment” and, (B) together with the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make incremental Revolving Loans (any such increase, an “Incremental Revolving Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinIncrease” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstandingTerm Loan, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25Loans”); provided that in no event the total aggregate amount for all such Incremental Loan Commitments shall the New Revolving Credit Commitments not exceed $30,000,000750,000,000 (of which no more than $250,000,000 may be an Incremental Revolving Commitment). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the representations and warranties made by the Credit Parties herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects (except to the extent that any such representation or warranty is qualified by materiality, in which case such representation and warranty shall be true and correct) on and as of the date of such Increased Amount Date as if made on and as of such date (except for those which expressly relate to an earlier date). (C) the Administrative Agent and the Lenders shall have received from the Company an Officer’s Compliance Certificate demonstrating that (i) the Company will share be in compliance on a pro forma basis with the Collateral financial covenants set forth in Section 6.1 both before and after giving effect to (1) any Incremental Loan Commitment (assuming the full drawing of any Incremental Revolving Commitment), (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith and (ii) the Senior Secured Leverage Ratio is less than 2.75:1.00, or if the Company has achieved Investment Grade Status, the Leverage Ratio is less than 2.75:1.00, in each case both before and after giving effect to (1) any Incremental Loan Commitment (assuming the full drawing of any Incremental Revolving Commitment), (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute obligations of the Company and shall be guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice to any Revolving Lender with respect to an increase in Incremental Term Loan (the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) terms of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental relevant Lender Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall):

Appears in 1 contract

Sources: Credit Agreement (Rock-Tenn CO)

Incremental Loans. (a) At any time or from time to time after the Closing DateEach Borrower may, the Borrower may by written notice to the Administrative Agent elect from time to time, request (Ax) prior to the Revolving Termination Date, Incremental Term Loan Commitments from one or more increases in Incremental Term Lenders, all of which must be Eligible Assignees and (y) Incremental Revolving Credit Commitments from one or more Incremental Revolving Lenders; provided that the aggregate amount of Incremental Term Loans and/or Incremental Revolving Commitments so requested by the Borrowers shall not exceed the Incremental Loans Amount. Such notice shall set forth (i) the amount of Revolving the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a “Revolving Facility Increase”minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loans Amount with respect to Incremental Term Loan Commitments), (Bii) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice) (the “Increase Effective Date”) and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). (b) Each Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Loan Lenders in connection therewith. The applicable Borrower and each Incremental Loan Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Loan Lender. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (Bbut only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the applicable Borrower may revise this Agreement to evidence such amendments (without the consent of any other Lender); provided, that: (i) the identity of each existing Lender or other Person that is an Assignee (each, a “New Incremental Revolving Credit Lender” or “New Term Lender,” Commitments shall be implemented as applicable) an increase to whom the Borrower proposes any portion of such Incremental Commitments, be allocated Revolving Credit Commitments and the amounts terms of such allocationsthe Incremental Revolving Credit Commitments and Incremental Revolving Loans shall be identical to the Revolving Credit Commitments and the Revolving Loans; (ii) the terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans, except as to maturity, interest rates, fees and amortization (which shall be subject to the following clauses (x) through (z)) and except as otherwise agreed by the Required Lenders; provided that (w) any Lender approached to provide all or a portion of unless otherwise agreed by the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment)Required Lenders, (x) the Administrative Agent, final maturity date of any Other Term Loans shall be no earlier than the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such PersonTerm Loan Maturity Date, (y) with respect the average life to New maturity of the Other Term Commitments, any Affiliated Lender providing a New Term Commitment Loans shall be subject no shorter than the average life to maturity of the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New if the All-in Yield on such Other Term Loans exceeds the All-in Yield applicable to Eurodollar Term Loans, by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans; and (iii) to the extent the Revolving Credit Commitments are being increased on the relevant Increase Effective Date in connection with any Incremental Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender applicable Borrower shall determine the final allocation of such increase on the Increase Effective Date and the Swingline Lender, or another form of incremental amendment, each of which Administrative Agent shall be recorded in promptly notify the Register; (4) applicable Borrower and the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing Revolving Credit Lenders of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect final allocation of such Incremental Loans to the Administrative Agent, the Collateral Agent increase and the Lenders (other than any Defaulting Lender). (b) Increase Effective Date. On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increasethe Increase Effective Date, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders having a Revolving Credit Commitment prior to such Increase Effective Date (“Pre-Increase Revolving Lenders”) shall assign to each of the New any Revolving Lender which is acquiring a new or additional Revolving Credit Commitment on the Increase Effective Date (“Post-Increase Revolving Lenders”), and each of the New such Post-Increase Revolving Credit Lenders shall purchase from each of the Pre-Increase Revolving Lenders, at the principal amount thereof, Lender such participation interests in the New Revolving Credit Loans (as defined below) L/C Exposure outstanding on such Increased Amount Date as Increase Effective Date, and purchase Revolving Loans from Pre-Increase Revolving Lenders (or the Borrowers shall be necessary in order that, prepay Revolving Loans of Pre-Increase Revolving Lenders (and pay any additional amounts required pursuant to Section 2.16) and borrow Revolving Loans from Post-Increase Revolving Lenders) pursuant to procedures reasonably acceptable to the Administrative Agent such that after giving effect to all such assignments and purchasespurchases and repayments and borrowings, such Revolving Loans and participation interests in L/C Exposure will be held by existing Pre-Increase Revolving Lenders and New Post-Increase Revolving Credit Lenders ratably in accordance with their Pro Rata Percentage of the Revolving Credit Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New increased Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating theretoCommitments. (c) Any New Term Loans or New Revolving Loans effected through Notwithstanding the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date foregoing, no Incremental Loan Commitment shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of become effective under this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, Section 2.26 unless (i) each New Term Lender on the date of such tranche effectiveness, and after giving effect to such Incremental Loan Commitment (assuming that the related Incremental Loans were drawn in full on such date), (x) the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall make be satisfied, (y) the Senior Secured Leverage Ratio shall be less than or equal to 4.50:1.00 on a Loan pro forma basis and (z) the Administrative Agent shall have received a certificate as to the foregoing dated such date and executed by a Financial Officer of the Lead Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms Incremental Loan Lenders) legal opinions, board resolutions and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to other closing certificates reasonably requested by the Borrower (when borrowed, a “New Revolving Credit Loan” Administrative Agent and collectively consistent with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to those delivered on the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term LoansClosing Date under Section 4.02. (d) The Each of the parties hereto hereby agrees that the Administrative Agent shall notify Lenders promptly upon receipt may, in consultation with the Lead Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the Borrower’s notice date of each Increased Amount Date and in respect thereof (x) Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the tranche of New Revolving Credit Commitments preceding sentence shall be subject to Section 2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, other economic consequences thereof shall be as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase set forth in the applicable Revolving CommitmentsIncremental Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the respective interests in scheduled amortization payments under Section 2.11(a)(i) required to be made after the making of such Revolving Lender’s Revolving Commitments, in each case subject Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the assignments contemplated by clause (b) of this Section 2.25extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation. (e) The terms, provisions and documentation of the New Term Incremental Loans and New Term Incremental Loan Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph Section 2.26 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents except to the extent otherwise provided in the Incremental Loan Assumption Agreement applicable thereto. The Loan Parties shall take any actions reasonably requested by the Administrative Agent to ensure that the Liens granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Incremental Loans or any such new Incremental Loan Commitments.

Appears in 1 contract

Sources: Credit Agreement (Wca Waste Corp)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the The Borrower may by written notice to the Administrative Agent Agent, elect to request establish (Ai) prior to the Revolving Termination Date, one or more increases in term loan commitments (the amount of Revolving Commitments “New Term Loan Commitments”) and/or (a “Revolving Facility Increase”), (Bii) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental for all New Term Loan Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed up to $30,000,000800,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental New Term Loan Commitments and/or New Revolving Credit Commitments shall be effective, which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent Agent, (B) the amount of such New Term Loan Commitments and/or New Revolving Credit Commitments, which must be at least $25,000,000, and (BC) the identity of each existing (x) Lender or (y) other Person Purchaser that is an Assignee has been approved in writing by the Administrative Agent (eachwhich approval, in the case of the Administrative Agent, will not be unreasonably withheld or delayed) and the Borrower (each such Lender or Purchaser, a “New Term Loan Lender” or a “New Revolving Credit Lender” or “New Term Lender,” ”, as applicable) to whom the Borrower proposes any portion of which such Incremental Commitments, New Term Loan Commitments and/or New Revolving Credit Commitments will be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental New Term Loan Commitments and/or New Revolving Credit Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide and/or a New Revolving Credit CommitmentsCommitment. Such Incremental New Term Loan Commitments and/or New Revolving Credit Commitments shall become effective, effective as of such Increased Amount Date; provided that that, both before and after giving effect to such New Term Loan Commitments and/or New Revolving Credit Commitments (1) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental New Term Loan Commitments and/or New Revolving Credit Commitments, as applicable; (2) both before and after giving effect to the Incremental Commitments will share making of any New Term Loans and/or Revolving Loans, each of the conditions set forth in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, Section 5.2 shall be effected pursuant to one satisfied, unless waived by each New Term Loan Lender or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (43) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities 7.20 after giving effect to such Incremental CommitmentNew Term Loan Commitments and/or New Revolving Credit Commitments as of the last day of the most recently ended fiscal quarter for which a compliance certificate has been delivered pursuant to Section 7.1(v); (4) the New Term Loan Commitments and/or New Revolving Credit Commitments shall be effected pursuant to one or more Additional Credit Extension Amendments executed and delivered by the Borrower, the New Term Loan Lender and/or the New Revolving Credit Lender and the Administrative Agent, and any Incremental Commitments previously made pursuant to this each of which shall be recorded in the Register (as defined in Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans13.3.4); and (5) the Borrower shall pay, or cause deliver to the Administrative Agent evidence reasonably satisfactory to the Administrative Agent that any increase to be paid, effected under this Section 2.25 has been duly authorized by all fees appropriate action and expenses owing legal opinions (including in-house opinions in respect lieu of such Incremental Loans to opinions of outside counsel) if reasonably requested by the Administrative Agent, consistent with those delivered on the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) Closing Date. On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increaseeffected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereofthereof (together with accrued interest), such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Credit Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the its New Revolving Credit Commitments Commitment and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Loan Commitments of any tranche are effected (including through any Term Loan Increase)effective, subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender of such tranche shall make a Term Loan to the Borrower (a “New Term Loan”, and together with the related New Term Loan Commitments, a “New Term Loan Facility”) in an amount equal to its New Term Commitment of such trancheLoan Commitment, and (ii) each New Term Loan Lender of such tranche shall become a Term Loan Lender hereunder with respect to the New Term Loan Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify applicable Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Term Loan Commitments and the New Term Loan Lenders and/or the New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25Lenders. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Revolving Credit Agreement (Duke Realty Limited Partnership/)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower Borrowers may by written notice to the Administrative Agent elect to request the establishment of: (Aa) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more/an additional term loan (any such additional term loan, an “Incremental Term Loan”); or (b) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstandingTerm Loans, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25Loans”); provided that in no event (i) the total aggregate principal amount for all such Incremental Loan Commitments shall the New Revolving Credit Commitments not (as of any date of incurrence thereof) exceed $30,000,000300,000,000 (provided that any amount of Incremental Loans funded pursuant to the terms of this Agreement shall reduce the total aggregate principal amount for all Incremental Equivalent Debt permitted to be incurred hereunder on a dollar-for-dollar basis) and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $50,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes Borrowers propose that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrowers shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and (B) the identity of Issuing Lender shall consent to each existing Incremental Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes providing any portion of such an Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share in the Collateral on a pari passu basis; Loans pursuant thereto and (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements any Permitted Acquisition consummated in connection therewith; (each, an “Incremental Joinder Agreement”ii) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender Lenders shall have received from the Borrowers a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Swingline LenderAdministrative Agent, or another form of incremental amendment, each of which shall be recorded that the (1) Borrowers are in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants specified in Section 7.1 9.14 [Maximum Consolidated Leverage Ratio] and Section 9.15 [Minimum Consolidated Interest Coverage Ratio] and (assuming a borrowing 2) Consolidated Leverage Ratio will be at least 0.25 to 1.00 less than the maximum Consolidated Leverage Ratio in effect as of the maximum amount of Loans available under Increased Amount Date pursuant to Section 9.14 [Maximum Consolidated Leverage Ratio], in each case based on the Facilities financial statements most recently delivered pursuant to Section 8.12(a) [Quarterly Financial Statements] or Section 8.12(b) [Annual Financial Statements], as applicable, both before and after giving effect (on a Pro Forma Basis) to such (x) any Incremental Loan Commitment, and (y) the making of any Incremental Commitments previously made Loans pursuant thereto (with any Incremental Loan Commitment being deemed to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); be fully drawn) and (5z) the Borrower shall pay, or cause to be paid, all fees and expenses owing any Permitted Acquisition consummated in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).connection therewith; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (aiii) each of the Revolving Lenders representations and warranties contained in Article 6 [Representations and Warranties] shall assign be true and correct in all material respects, except to each of the New Revolving Credit Lendersextent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereofin which case, such interests representation and warranty shall be true, correct and complete in the New Revolving Credit Loans (as defined below) outstanding all respects, on such Increased Amount Date with the same effect as shall be necessary in order that, after giving effect to all such assignments if made on and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition as of such New Revolving Commitments to the Revolving Commitmentsdate (except for any such representation and warranty that by its terms is made only as of an earlier date, (b) each New Revolving Commitment which representation and warranty shall be deemed for all purposes a Revolving Commitment remain true and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, correct as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increaseearlier date), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms the proceeds of the New Revolving Credit Commitments and New Revolving Credit any Incremental Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except used for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage general corporate purposes of the Revolving Commitments on the Increased Amount Date (Borrowers and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder their Subsidiaries (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity datesPermitted Acquisitions); (v) the New Term Loans may participate on any proposed Incremental Lender shall join this Agreement as a pro rata basis or less than pro rata basis (but not on Lender pursuant to a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Lender Joinder Agreement; (vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrowers and shall be secured and guaranteed with regards to any New the other Obligations on a pari passu basis; (1) in the case of each Incremental Term Loan, if the applicable interest rate relating to : (I) such New Incremental Term Loan exceeds will mature and amortize in a manner reasonably acceptable to the interest rate Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrowers, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity (as reasonably determined by the Administrative Agent) of the initial Term Facility Loans or a maturity date earlier than the Term Loan Maturity Date; (II) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by more than 50 basis pointsthe Administrative Agent, the applicable interest rate relating to such Incremental Lenders and the Borrowers on the applicable Increased Amount Date; (III) any Incremental Lender making any Incremental Term Facility Loan shall be adjusted entitled to the same voting rights as the existing Term Loan Lenders under the Term Loan Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Incremental Term Loans to be equal prepaid prior to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New initial Term Loans) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the initial Term Loans (which such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and (IV) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 5.17, be identical to the terms and conditions applicable to the initial Term Loans; (2) in the case of each Incremental Revolving Credit Increase: (I) such Incremental Revolving Credit Increase shall be deemed part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to constitute a like amount of original issue discount) paid by fees, in each case at the Borrower rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility; (II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the New Term Loan and such initial Term Revolving Credit Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the applicable margin on any initial Term Facility that became effective subsequent Incremental Revolving Credit Increase to the Closing Date but be terminated prior to termination of the time existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of such New Term Loan shall also be included in such calculations; provided, further, that if prepayments on the reserve adjusted Eurodollar Rate (same basis as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New existing Revolving Credit Loans will rank pari passu in right (such prepayments to be shared pro rata on the basis of payment with existing Term Loans and the original aggregate funded amount thereof); and (III) the outstanding Revolving Credit Loans and Ratable Shares of Swingline Loans and Letter of Credit Obligations will be reallocated by the liens securing Administrative Agent on the New Term Loans and/or New applicable Increased Amount Date among the Lenders to the Revolving Credit Loans will rank pari passu with Facility (including the liens securing the existing Term Loans and Incremental Lenders providing such Incremental Revolving Credit LoansIncrease) in accordance with their revised Ratable Shares and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required. (f3) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of and with the consent of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.255.17, and for without the avoidance consent of doubtany other Lenders; and (4) the Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, this Section 2.25 shall supersede without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any provisions in Section 10.7 or 10.1 to the contrarysuch transaction. (gc) The Loans Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and Commitments extended conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or established be obligated to make, an Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to this paragraph the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall constitute Loans and Commitments under, and shallbecome a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Revolving Credit Commitment.

Appears in 1 contract

Sources: Credit Agreement (ICF International, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the Borrower may at any time, by written notice to the Administrative Agent elect to Agent, request (A) prior that, subject to the Revolving Termination Datefollowing conditions and otherwise in accordance with this Agreement, Lenders and/or New Lenders provide (w) one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans facilities (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental CommitmentsTerm Facilities). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) one or more delayed draw term loan facilities (the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such PersonDelayed Draw Term Facilities”), (y) with respect to New Term additional Revolving Credit Commitments (the “Incremental Revolving Credit Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and and/or (z) Affiliated Lenders may not provide New one or more additional revolving credit facilities (the “Incremental Revolving Facilities” and, together with the Incremental Term Facilities, the Incremental Delayed Draw Term Facilities and the Incremental Revolving Credit Commitments. Such , collectively, the “Incremental Commitments shall become effectiveFacilities” and individually an “Incremental Facility”); provided, as of that on the date that any such Increased Amount Incremental becomes effective (the “Incremental Facility Effective Date; provided that ”): (1i) no Default or Event of Default shall exist on have occurred and be continuing or result from such Increased Amount Date Incremental Facility and/or the Incremental Loans made pursuant to such Incremental Facility; (ii) after giving effect to all Incremental Loans made under such Incremental CommitmentsFacility of the applicable Incremental Facility Effective Date, the Borrower will be in compliance on a pro forma basis with the provisions of Section 7.1(a) and Section 7.1(b) (determined as applicableof the last day of the most recent fiscal quarter for which financial statements are required to be delivered under Section 6.1(a) or Section 6.1(b) as if such Incremental Loans had been funded and the application of such proceeds had occurred on such last day); (2iii) the terms of such Incremental Commitments will share Facility and the applicable Incremental Loans are in compliance with Section 2.8(c) below; (iv) the Borrower shall have received all approvals from all applicable Governmental Authorities necessary or, in the Collateral on a pari passu basisdiscretion of the Administrative Agent, advisable in connection with such Incremental Facility; (3v) the Incremental Commitments, Borrower shall have delivered to the Administrative Agent a legal opinion of each such special or local counsel as applicable, shall may be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered reasonably requested by the Borrower, Administrative Agent with respect to such Incremental Facility and the New Revolving Credit Lender or New Term Lender, as applicable, and applicable Incremental Facility Amendments; (vi) the Borrower shall have delivered to the extent applicable, Administrative Agent title and extended coverage insurance for each real property Collateral covering the amount of such Incremental Facility containing such endorsements and affirmative coverage as the Administrative Agent may reasonably request; (vii) the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such execute conforming amendments to this Agreement and the other Loan Documents as may be necessary or appropriate(collectively, the “Incremental Facility Amendments”) to reflect such Incremental Facility without the consent of any Lender, including, without limitation, to provide for the terms set forth in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Incremental Facility Activation Notice described below or Section 2.252.8(c), and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shalland

Appears in 1 contract

Sources: Credit Agreement (Pinnacle Entertainment Inc)

Incremental Loans. (a) At any time or from time until 30 days prior to time after the Closing Revolving Credit Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, establishment of one or more increases in the amount of Revolving Credit Commitments (a an Incremental Revolving Facility IncreaseCredit Commitment), (B) the establishment of one or more new to make incremental revolving credit commitments loans (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitmentsloan made thereunder, collectively with any New Revolving Credit Commitments, the “Incremental CommitmentsLoans”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for all such Incremental Revolving Credit Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $40,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Revolving Credit Commitment shall be effective, which shall be a date not less than 20 Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Revolving Credit Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Revolving Credit Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Commitments, as applicable; Revolving Credit Commitment and (2) the making of any Incremental Commitments Loans pursuant thereto; (B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating that the Borrower will share be in compliance on a pro forma basis with the Collateral financial covenants set forth in Section 8.15 (provided that the Consolidated Total Indebtedness to Consolidated Capitalization Ratio shall be less than 62.5%) both before and after giving effect to (1) any Incremental Revolving Credit Commitment and (2) the making of any Incremental Loans pursuant thereto, and assuming the all Incremental Loans under such Incremental Revolving Credit Increase have been made; (C) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries; (D) each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (yE) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Incremental Revolving Credit Loans and New Revolving Credit Commitments, as Increase (the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by set forth the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental relevant Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallAgreement):

Appears in 1 contract

Sources: Credit Agreement (Macquarie Infrastructure CO LLC)

Incremental Loans. (a) At any time or from time to time after the Closing Date and prior to the Facility Termination Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, establishment of one or more increases in the amount of Aggregate Commitment (any such increase, an “Incremental Revolving Commitments Credit Commitment”) to make revolving credit loans under the Revolving Credit Facility (a any such increase, an Incremental Revolving Facility Credit Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such increases during the term of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 this Agreement shall not exceed $200,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Increase shall not be less than $15,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Revolving Credit Increase shall be effective. The Borrower may invite any Lender, which shall be a date after the date on which such notice is delivered any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New an “Incremental Lender”). Any Incremental Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1a) no Unmatured Default or Event of Default shall exist on such Increased Amount Date; (b) each of the representations and warranties contained in Article 5 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date after giving with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) as of such earlier date); (c) in the case of each Incremental Revolving Credit Increase: (i) the outstanding Revolving Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental Commitments, as applicable; Revolving Credit Increase) in accordance with their revised Pro Rata Share (2) and the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to ‎Section 3.04 in connection with such reallocation as if such reallocation were a repayment); and (ii) such Incremental Revolving Credit Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Lender Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such applicable Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (bwhich Lender Joinder Agreement(s) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall2.22);

Appears in 1 contract

Sources: Credit Agreement (GXO Logistics, Inc.)

Incremental Loans. (a) At any time or from time to time after following the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstandingTerm Loans, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event (i) the total aggregate principal amount for all such Incremental Loan Commitments shall the New Revolving Credit Commitments not (as of any date of incurrence thereof) exceed $30,000,000100,000,000 and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $5,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent. (b) The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swing Loan Lender and (B) the identity of Issuing Lender shall consent to each existing Incremental Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes providing any portion of such an Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, Loan Commitment. (yc) with respect to New Term Commitments, any Affiliated Lender providing a New Term Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (ii) each of the representations and warranties contained in Section 6.1 shall be true, correct and complete in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (iii) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (iv) any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a joinder substantially in the Collateral form of Exhibit 2.11 delivered to the Administrative Agent on or before the Increased Amount Date; and (v) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Obligations on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed junior basis and delivered by the Borrower, the New Revolving Credit Lender will rank pari passu or New Term Lender, as applicable, and junior in right of payment with respect to the extent applicable, other Obligations. (d) In the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form case of incremental amendment, each of which shall be recorded in the Register; Incremental Term Loan: (4i) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, Term Loan will mature on such date and any Incremental Commitments previously made pursuant be subject to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans customary mandatory prepayment provisions as is reasonably acceptable to the Administrative Agent, the Collateral Agent Incremental Lenders making such Incremental Term Loan and the Lenders (other than Borrower, but will not in any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through event have a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter scheduled maturity date earlier than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term LoansTermination Date; (ii) the amortization schedule for any such Incremental Term Loan shall be 5% of the initial principal amount for each of the first two loan years, 7.5% of the initial principal amount for the third loan year and 10% of the initial principal amount for each loan year thereafter, payable in equal quarterly installments and with all outstanding principal and interest due and payable on the maturity date for such Incremental Term Loan; (Aiii) the final maturity date Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the Administrative Agent, the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date; provided that if the Applicable Margin in respect of any tranche of Incremental Term Loan exceeds the New Term Applicable Margin for the Revolving Credit Loans shall be no earlier by more than 0.50%, then the original Term Maturity Date and (B) Applicable Margin for the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; increased (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in including at each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms tier of the New Revolving Credit Commitments and New pricing grid) so that the Applicable Margin in respect of such Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be is equal to the applicable interest rate relating to such New Applicable Margin for the Incremental Term Loan minus 50 basis points0.50%; provided, further, that provided further in determining such the Applicable Margin(s) applicable interest ratesto each Incremental Term Loan and the Applicable Margin(s) for the Revolving Credit Loans, (x) original issue discount (“OID”) or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount amounts of original issue discountOID) paid payable by the Borrower to the Lenders under the New such Incremental Term Loan and such initial Term Facility or the Revolving Credit Loans in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount OID being equated to interest based on an assumed four-year life to maturity) and (y) customary arrangement or commitment fees payable to any amendments lead arranger (or its Affiliates) in connection with the Revolving Credit Loans or to the applicable margin on one or more arrangers (or their affiliates) of any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Incremental Term Loan shall also be excluded (it being understood that the effects of any and all interest rate floors shall be included in such calculationsdetermining Applicable Margin(s) under this provision); providedand (iv) except as provided above, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor all other terms and conditions applicable to such initial Incremental Term FacilityLoan shall, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, except to the extent an increase otherwise provided in this Section 2.11, be identical to the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, terms and in such case the interest rate floor (but not the interest rate margin) conditions applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (e) In the case of each Incremental Revolving Credit Increase: (i) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility; (ii) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and (iii) the outstanding Revolving Credit Loans and Ratable Shares of Swing Loans and Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares (and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.11, and for without the avoidance consent of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contraryother Lenders. (g) The Borrower shall deliver or cause to be delivered (1) any Notes evidencing any Incremental Loans or Incremental Loan Commitments requested by any Incremental Lender and Commitments extended (2) customary legal opinions or established other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction. (h) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (i) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. (j) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to this paragraph the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall constitute Loans and Commitments under, and shallbecome a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Revolving Credit Commitment.

Appears in 1 contract

Sources: Credit Agreement (Meridian Bioscience Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, establishment of one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, an “Incremental Loan Commitment”) to make revolving credit loans under the “New Revolving Credit CommitmentsFacility (any such increase, an “Incremental Loan”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $150,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments Loans pursuant thereto and (3) any Permitted Acquisition or other transaction consummated in connection therewith (or, to the extent constituting an Incremental Loan to finance a Limited Condition Acquisition, the foregoing condition, other than with respect to the absence of an Event of Default pursuant to Section 10.1(a), (b), (h) or (i), shall be satisfied at the LCA Test Date related to such Limited Condition Acquisition); (B) the Administrative Agent and the Lenders shall have received from Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the (1) Borrower is in compliance with the financial covenants set forth in Section 9.15 and (2) Total Leverage Ratio will share be not greater than 3.00 to 1.00, in each case based on the Collateral financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition or other transaction consummated in connection therewith; (C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date) and to the extent constituting an Incremental Loan to finance a Limited Condition Acquisition, the foregoing other than with respect to the absence of an Event of Default pursuant to Section 10.1(a), (b), (h) or (i), shall be satisfied at the LCA Test Date related to such Limited Condition Acquisition); (D) the proceeds of any Incremental Loans shall be used for general corporate purposes of Borrower and its Subsidiaries (including Permitted Acquisitions, joint venture Investments permitted hereunder, Capital Expenditures permitted hereunder, Restricted Payments permitted hereunder and repurchases of Equity Interests permitted hereunder); (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; ; (3F) in each case (the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each terms of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental relevant Lender Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall):

Appears in 1 contract

Sources: Credit Agreement (Kforce Inc)

Incremental Loans. (ai) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more establishment of increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, an “Incremental Loan Commitment”) for the “New advancing of incremental Revolving Credit CommitmentsLoans under the Revolving Credit Facility (each such advance of Revolving Credit Loans under the Incremental Loan Commitment, an “Incremental Loan”), ; provided that (Ca) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the total aggregate principal amount of all such Incremental Loan Commitments shall not (as of any Incremental Notesdate of incurrence thereof) exceed $100,000,000, $100,000,000 plus and (yb) an additional the minimum principal amount of each such Incremental Commitments so long as in Loan Commitment shall not be less than $25,000,000 or, if less, the case of this remaining amount permitted pursuant to the foregoing clause (ya), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent (or such shorter period acceptable to the Administrative Agent and Agent). The Borrower may invite existing Lenders, any Affiliate of any Lender and/or any Approved Fund, and/or any other Eligible Assignee reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (B) any such Person, an “Incremental Lender”); provided that the identity of Issuing Lender shall consent to each existing Incremental Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes providing any portion of an Incremental Loan Commitment (such consent not to be unreasonably withheld or delayed). Any proposed or prior Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender offered or approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Loans pursuant thereto on the applicable Increased Amount Date and (3) any Permitted Acquisition consummated in connection therewith; (B) Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the Net Leverage Ratio based on the financial statements most recently delivered pursuant to Section 8.2.16 both before and after giving effect (on a pro-forma basis) to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto on the applicable Increased Amount Date and (3) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to a Material Adverse Change, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loan Commitments will share and Incremental Loans) reasonably requested by Administrative Agent in connection with any such transaction; and (E) each proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement. (ii) Each Incremental Loan Commitment (and Incremental Loan) shall (a) constitute Obligations of the Collateral Borrower and, to the extent the other Obligations are guaranteed, shall be guaranteed with the other Obligations on a pari passu basis; , and (3b) be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility. (iii) Unless otherwise agreed by the applicable Incremental Lenders (provided that no such agreement shall allow the Incremental Loan Commitments to be terminated prior to termination of the existing Revolving Credit Commitments), each Incremental Loan shall receive proceeds of prepayments on the same basis as applicable, the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof). (iv) The outstanding Revolving Credit Loans and Ratable Shares of Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing Incremental Loan Commitments) in accordance with their revised Ratable Shares and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing Incremental Loan Commitments) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.10 in connection with such reallocation as if such reallocation were a repayment). (v) Incremental Loan Commitments may be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.11, and for without the avoidance consent of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contraryother Lenders. (gvi) The Loans Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (vii) On each Increased Amount Date, subject to the foregoing terms and Commitments extended or established pursuant conditions, each Incremental Lender with an Incremental Loan Commitment shall become a Lender under the Revolving Credit Facility hereunder with respect to this paragraph shall constitute Loans and Commitments under, and shallsuch Incremental Loan Commitment.

Appears in 1 contract

Sources: Credit Agreement (Pegasystems Inc)

Incremental Loans. (a) At any time or from time to time after the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect and the Person appointed by the Borrower to arrange Incremental Loan Commitments (such Person (who may be (i) the Administrative Agent, if it so agrees or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) prior to the Revolving Termination Date, one or more increases in new commitments for new Term Loans which may be of the amount same Class as any outstanding Class of Revolving Commitments Term Loans or a new Class of Term Loans (a the Revolving Facility IncreaseIncremental Term Loan Commitments), ) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Incremental Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Incremental Revolving Credit Commitments, collectively with any New Revolving Credit Incremental Term Loan Commitments, the “Incremental Loan Commitments”). Each Incremental Commitment shall be , in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, exceed the Incremental Commitments shall not exceed, Loan Amount (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each caseRevolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25available); provided that Incremental Loan Commitments may be incurred in no event the Available Currency or an alternative currency pursuant to procedures and on terms to be agreed with the applicable Incremental Arranger. The Incremental Arranger shall the New Revolving Credit Commitments exceed $30,000,000. Each promptly deliver a copy of such notice to each of the Lenders. Such notice shall specify set forth (Ai) the date amount of the Incremental Loan Commitments being requested (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be in minimum increments of, $1,000,000 and a date after minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Incremental Arranger in its reasonable discretion), or such lesser amount equal to the Incremental Loan Amount at such time), (ii) the date on which such notice is delivered Incremental Loan Commitments are requested to become effective (which shall not be less than five Business Days (or such shorter period as agreed by the Incremental Arranger) after the date of such notice) and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make Loans with terms different from such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject only to the Administrative Agent satisfaction of the terms and conditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (A) (1) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class and (2) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (B) the identity of (1) each existing Lender or other Person that is an Assignee (each, a “New Incremental Revolving Credit Lender” or “New Term Lender,” as applicable) Lender of such Class shall make its Commitment available to whom the Borrower proposes (when borrowed, an “Incremental Revolving Loan” and collectively with any portion Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (2) each Incremental Commitments, be allocated Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the amounts Incremental Revolving Loans of such allocationsClass made pursuant thereto. (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that (wi) any Lender approached the Borrower and the Administrative Agent shall have consented to provide all or a portion such additional banks, financial institutions and other institutional lenders to the extent the consent of the Incremental Commitments may elect Borrower or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to as applicable, would be unreasonably withheld) to such Person’s providing such Incremental Commitments required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent, the Issuing Lender and Swingline Lender would Agent shall not be required under Section 10.6 for with respect to an assignment additional bank, financial institution, or other institutional lender that is an Affiliate of Loans a Lender or Commitments to such Persona Related Fund), (yii) with respect to New Incremental Term Loan Commitments, any Affiliated Lender providing a New an Incremental Term Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) 9.04 as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (ziii) Affiliated Lenders may not provide New Incremental Revolving Credit Commitments. Such The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent and the Incremental Arranger an Incremental Loan Assumption Agreement and such other documentation as the Incremental Arranger shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Lender. The Other Loans and any Incremental Revolving Credit Commitments providing for Incremental Revolving Loans that are Other Loans (such commitments, “Other Revolving Credit Loan Commitments” and such loans, “Other Revolving Credit Loans”) (i) shall become effectivehave fees and margin and/or interest rate determined by the Borrower and the Incremental Lenders providing such Loans, as (ii) shall rank pari passu in right of payment with the Loans or Commitments existing prior the incurrence of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Other Loans and Other Revolving Credit Loan Commitments will share in and be secured by the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed basis and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of Incremental Term Loans, (x) may participate on a Term Loan Increasepro rata basis, less than pro rata basis or greater than pro rata basis in any New mandatory prepayment of Term Loans shall be on the same terms and pursuant to the same documentation as the (except that, unless otherwise permitted under this Agreement, such Incremental Term Loans increased thereby may not participate on a greater than pro rata basis as compared to any earlier maturing Class of Term Loans) and (y) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any voluntary prepayment of Term Loans and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Incremental Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwiseLoans, (1x) shall provide that the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Incremental Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of the Incremental Revolving Termination Date Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3y) below)) of Loans with respect to New Incremental Revolving Credit Commitments after the associated Increased Amount Incremental Facility Closing Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not more than a pro rata basis) with all other Revolving Credit Commitments then existing on the Incremental Facility Closing Date and (y) may provide that the permanent repayment of Revolving Credit Loans with respect to, and termination or reduction of, Incremental Revolving Credit Commitments after the associated Incremental Facility Closing Date be made on a pro rata basis, less than pro rata basis or greater than pro rata basisbasis with all other Revolving Credit Commitments. Without the prior written consent of the Administrative Agent, (A) in the final maturity date of any voluntary or mandatory prepayments of Other Loans that are Term Loans hereunder(the “Other Term Loans”), as specified in shall be no earlier than the Initial Term Loan Maturity Date, (B) the final maturity date of any Other Revolving Credit Loans or Other Revolving Credit Loan Commitments shall be no earlier than the Initial Revolving Credit Commitment Maturity Date, (C) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans, (D) the All-In Yield applicable to the Other Loans shall be determined by the Borrower and the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility Lenders and shall be adjusted to be equal to the set forth in each applicable interest rate relating to such New Term Incremental Loan minus 50 basis pointsAssumption Agreement; provided, furtherhowever, that in determining on or prior to the date that is 12 months from the Funding Date, the All-In Yield applicable to such applicable interest ratesOther Term Loans of the same currency as the Initial Term Loans (other than Other Term Loans (w) Incurred pursuant to Section 4.04(a) of Annex I, Section 4.04(b)(1)(B)(y) of Annex I, (x) original issue discount having a maturity date that is more than two years after the Initial Term Loan Maturity Date or upfront fees (but exclusive of any arrangement, structuring y) Incurred in connection with an acquisition or other fees Investment) shall not be greater than the applicable All-In Yield payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower pursuant to the Lenders under terms of this Agreement as amended through the New date of such calculation with respect to the Initial Term Loan and such initial Term Facility in Loans plus 75 basis points per annum unless the initial primary syndication thereof shall be included and equated to interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor) with original issue discount being equated respect to interest based such Loans is increased so as to cause the then applicable All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the Other Term Loans minus 75 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of an assumed four-year life Adjusted LIBO Rate floor or an Alternate Base Rate floor on any Other Term Loans shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Adjusted LIBO Rate floor or Alternate Base Rate floor, as applicable, applicable to maturitysuch Loan, (y) through an increase in the Applicable Margin for such Loan or (z) any combination of (x) and (y) any amendments to above and (E) the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) other terms and documentation in respect of such New Term Other Loans (except for covenants or other provisions (i) conformed (or added) in the Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase Documents pursuant to the applicable interest margin under related Incremental Loan Assumption Agreement for the initial Term Facility shall be required, to benefit of all of the extent an increase Lenders; provided that (x) in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing any Class of Incremental Term Loans and Incremental Term Loan Commitments, “soft-call” provisions may be added solely for the benefit of the Term Lenders and (y) in the case of any Class of Incremental Revolving Loans and Incremental Revolving Credit Loans and Commitments, financial maintenance covenants may be added solely for the liens securing benefit of the New Term Loans and/or New Revolving Credit Loans will rank pari passu with Lenders or (ii) applicable only to periods after the liens securing Latest Maturity Date as of the existing Term Loans and Revolving Credit Loans. Incremental Facility Closing Date (fcollectively the “Additional Covenants”) Each Incremental Joinder Agreement may, which may be added without the consent of any other Lendersparty)), effect to the extent not consistent with the Term Facilities or the Revolving Credit Facilities, as applicable, shall be reasonably satisfactory to the Incremental Arranger; provided that such amendments other terms and documentation shall be deemed to this Agreement be reasonably satisfactory to such Incremental Arranger if they reflect market terms and conditions (taken as a whole) at the other time of incurrence of such Other Loans (as determined by the Borrower in good faith)). The Incremental Arranger shall promptly notify each Lender that has Incremental Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Commitments and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 as to the contrary. (g) The Loans effectiveness of each Incremental Loan Assumption Agreement and Commitments extended or established pursuant each such effective Incremental Loan Assumption Agreement may be provided to this paragraph shall constitute Loans the Lenders and Commitments under, and shallthe

Appears in 1 contract

Sources: Credit Agreement (Altice USA, Inc.)

Incremental Loans. (a) At any time or from time prior to time after the Closing date that is six (6) months prior to the Revolving Credit Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments incremental Revolving Credit Commitments (any such new commitmentsincremental Revolving Credit Commitment, collectively with a “New Loan Revolving Credit Commitment”) to make incremental revolving credit loans (any Revolving Facility Increasesuch incremental revolving credit loans, the “New Revolving Credit CommitmentsLoans”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for all such New Loan Revolving Credit Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $300,000,000 and (2) the total aggregate amount for each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments any New Loan Revolving Credit Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender and/or any Affiliate of any Lender and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide a New Loan Revolving Credit Commitment (B) the identity of each existing Lender or other Person that is an Assignee (eachany such Person, a “New Revolving Credit Lender”). Any Lender or any New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender offered or approached to provide all or a portion of the Incremental Commitments any New Loan Revolving Credit Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental such New Loan Revolving Credit Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to . Any New Term Commitments, any Affiliated Lender providing a New Term Loan Revolving Credit Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments(1) any New Loan Revolving Credit Commitment, as applicable; and (2) the Incremental Commitments will share in making of any New Loans pursuant thereto; (B) the Collateral proceeds of any New Loans shall be used for the purposes permitted by Section 8.12; (C) each New Loan Revolving Credit Commitment (and the New Loans made thereunder) shall constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (bD) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case terms of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche Loan shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event:relevant Joinder Agreement; (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of Applicable Margin and pricing grid, if applicable, for such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than determined on the original Term Maturity Date and (B) applicable Increased Amount Date; provided that if such Applicable Margin would exceed the final maturity date of any tranche of current Applicable Margin for the New existing Revolving Credit Loans, the Applicable Margin for the existing Revolving Credit Loans shall be no earlier than automatically increased to equal the original Revolving Maturity Date; Applicable Margin for the New Loans and (iiiii) (A) in the case of a Term Loan Increase, any such New Term Loans shall be on subject to the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation conditions as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical (except with respect to the Revolving Commitments, on the Increased Amount Credit Maturity Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shalland

Appears in 1 contract

Sources: Credit Agreement (Amerigas Partners Lp)

Incremental Loans. (a) At The Borrower may at any time or from time to time after the Closing Date, the Borrower may by written notice delivered to the Administrative Agent elect (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (Ai) prior to the Revolving Termination Date, one or more additional Classes of term loans and/or additional commitments of any existing Class of Term Loans (the commitments in respect of any such new Class or increase, “Incremental Term Commitments” and loans made thereunder, “Incremental Term Loans”) and/or (ii) one or more additional Classes of Revolving Commitments (the commitments of any such new Class, “Additional/Replacement Revolving Commitments”) and/or increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments any existing Class (any such new increased commitments, collectively “Increased Revolving Commitments” and, together with any Incremental Term Commitment and Additional/Replacement Revolving Facility IncreaseCommitments, collectively, “Incremental Facilities”; and the loans under such Increased Revolving Commitments and Additional/Replacement Revolving Commitments, New Incremental Revolving Credit CommitmentsLoans” and, together with any Incremental Term Loans, “Incremental Loans”); provided, (C) prior that after giving effect to the Term Maturity Dateeffectiveness of any Incremental Agreement referred to below on a Pro Forma Basis, except as otherwise agreed by the establishment lenders providing such Incremental Facilities in connection with a Limited Condition Acquisition permitted hereunder, no Event of one Default shall have occurred and be continuing or more new term loan commitments which would exist after giving effect to such Incremental Commitments (subject, in the case of any Incremental Facilities being used to finance a Limited Condition Acquisition, to Section 1.5(c)); provided, that the lenders providing any Increased Revolving Commitments may be not waive the requirements otherwise applicable to the availability of Revolving Commitments of the same tranche as such relevant existing Term Loans Class. (a “Term Loan Increase”b) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment Facility shall be in an aggregate principal amount that is not less than $5,000,000 individually 10 million (provided, that such amount may be less than $10 million if such amount represents all remaining availability under the limit set forth below) (and in integral multiples minimum increments of $1,000,000 5 million in excess of that amount. Notwithstanding anything to the contrary hereinthereof), the Incremental Commitments shall not exceed, (x) together with and the aggregate principal amount of all Incremental Facilities shall not exceed the Incremental Limit. (i) Any Incremental Term Loans (A)(1) may be pari passu with or junior to any then-existing Class of Term Loans in right of payment and may be pari passu with or junior to such Class of Term Loans in right of security or unsecured; provided, that any Incremental NotesTerm Loans that are pari passu with or junior to any then-existing Class of Term Loan in right of security and documented in a separate agreement or agreements shall be subject to an Acceptable Intercreditor Agreement, $100,000,000 plus (2) shall not be the obligation of, or subject to any guarantee by any Person who is not also a Loan Party (or who becomes a Loan Party substantially concurrently with the effectiveness thereof), and (3) shall not be secured by (x) a Lien on any Property in which the Collateral Agent does not have a Lien (or in which the Collateral Agent does not obtain a Lien substantially concurrently with the effectiveness thereof) or (y) a perfected Lien on any Property in which the Collateral Agent does not have a perfected Lien (or in which the Collateral Agent does not obtain a perfected Lien substantially concurrently with the effectiveness thereof); (B) subject to exceptions for customary bridge financings, shall not mature earlier than the Latest Term Loan Maturity Date with respect to the then-existing Class of Term Loans; provided, however, that, any Incremental Term Loans that are unsecured or junior in right of security to any then-existing Class of Term Loans shall not mature prior to the date that is 91 days after the Latest Term Loan Maturity Date, (C) subject to exceptions for (x) customary bridge financings, and (y) any necessary adjustments to make such Incremental Term Loans fungible with any other then-existing Class of Term Loans shall not have a shorter Weighted Average Life to Maturity than the then-existing Class of Term Loans; (D) shall have a maturity date (subject to clause (B)), an additional amount amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts and original issue discounts as determined by the Borrower and the lenders providing the Incremental Term Loans; provided, that with respect to Incremental Term Loans that are pari passu in right of Incremental Commitments so long as payment and security with the Initial Term Loans, in the case event that the Effective Yield for any such Incremental Term Loans is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for such Initial Term Loans is equal to the Effective Yield for the Incremental Term Loans minus 0.50%; (E) to the extent pari passu in right of this clause payment and security with any then-existing Term Loans that require ratable prepayment, shall share ratably with such existing Term Loans, subject to the right of the Borrower to direct the application of voluntary prepayments and unless the Borrower and the lenders providing the Incremental Term Loans elect to share in such prepayments on a less than pro rata basis; and (yF) may otherwise have terms and conditions different from those of the Initial Term Loans; provided, that (x) except with respect to matters contemplated by clauses (B), (1C), (D) and (E) above or terms applicable only after the Senior Secured First Lien Leverage Ratio Initial Term Maturity Date, any differences shall not be materially more restrictive (when taken as a whole) than the terms and conditions of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and Loan Documents (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each casewhen taken as a whole), as reasonably determined by the Borrower, unless such differences are consistent with then-current market terms for the applicable type of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall Indebtedness or otherwise be effective, which shall be a date after the date on which such notice is delivered reasonably satisfactory to the Administrative Agent and (By) the identity documentation governing any Incremental Term Loans may include any more restrictive terms (including any Previously Absent Financial Maintenance Covenant) so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such more restrictive terms or the benefit of each existing Lender or other Person that is an Assignee Facility. (each, a “New ii) The Increased Revolving Credit Lender” or “New Term Lender,” Commitments shall be treated the same as applicablethe Initial Revolving Commitments in effect on the Closing Date (including with respect to maturity date thereof) and shall be considered to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion part of the Incremental Commitments may elect or decline, Initial Revolving Facility in its sole discretion, to provide an Incremental Commitment effect on the Closing Date (it being understood that there is no obligation that, if required to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agentobtain Increased Revolving Commitments, the Issuing Lender interest rate margins, rate floors and undrawn commitment fees on the Swingline Lender Initial Revolving Commitments as in effect on the Closing Date may be increased and additional upfront or similar fees may be payable to the lenders providing the Increased Revolving Commitments) and shall have consented be effected as an increase in the Initial Revolving Commitments. (such consent not iii) Any Additional/Replacement Revolving Commitments (A)(1) may be pari passu with or junior to any then-existing Class of Revolving Commitments in right of payment and may be unreasonably withheld) pari passu with or junior to such Person’s providing such Incremental Class of Revolving Commitments if such consent in right of the Administrative Agentsecurity or unsecured; provided, the Issuing Lender that any Additional/Replacement Revolving Commitments in right of security that are pari passu with or junior to any then-existing Class of Revolving Commitments and Swingline Lender would be required under Section 10.6 for an assignment of Loans documented in a separate agreement or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment agreements shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effectivean Acceptable Intercreditor Agreement, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) shall not be the Incremental Commitments will share in obligation of, or subject to any guarantee by any Person who is not also a Loan Party (or who becomes a Loan Party substantially concurrently with the Collateral on a pari passu basis; effectiveness thereof), and (3) shall not be secured by (x) a Lien on any Property in which the Incremental Collateral Agent does not have a Lien (or in which the Collateral Agent obtains a Lien concurrently with the effectiveness thereof) or (y) a perfected Lien on any Property in which the Collateral Agent does not have a perfected Lien (or in which a Lien in favor of the Collateral Agent is perfected substantially concurrently with the effectiveness thereof); (B) shall not mature earlier than, and shall require no scheduled amortization prior to, the Revolving Termination Date applicable to the Revolving Facility on the Closing Date and shall require no mandatory commitment reduction prior to the Revolving Termination Date applicable to the Revolving Facility on the Closing Date; (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, and premiums (including prepayment premiums) as determined by the Borrower and the lenders of providing such Additional/Replacement Revolving Commitments; (D) may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be effected pursuant to one or more Joinder Agreements on terms substantially similar (eachexcept for the overall size of such subfacilities, an “Incremental Joinder Agreement”) executed the fronting fees payable in connection therewith and delivered the identity of the swingline lender and letter of credit issuer, as applicable, which shall be determined by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent lenders of such commitments and the Issuing Lender applicable letter of credit issuers and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitmentsswingline lenders, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) specified in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such applicable Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(gAgreement) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect terms relating to Swingline Loans and Letters of Credit theretofore incurred with respect to the Revolving Commitments or issuedotherwise reasonably acceptable to the Administrative Agent and (E) may otherwise have terms and conditions different from those of the Initial Revolving Facility; provided, that (x) except with respect to matters contemplated by clauses (B), (3C) and (D) above or terms applicable only after the Revolving Termination Date applicable to the Initial Revolving Facility, any differences shall not be materially more restrictive (when taken as a whole) than the terms and conditions of the Loan Documents (when taken as a whole), as reasonably determined by the Borrower, unless such differences shall be consistent with then-current market terms for the applicable type of Indebtedness or otherwise be reasonably satisfactory to the Administrative Agent and (y) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other documentation governing any Additional/Replacement Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of may include any such tranche on a better than a pro rata basis as compared to more restrictive terms (including any other tranche with a later maturity date than such tranche and (4Previously Absent Financial Maintenance Covenant) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, so long as the case may be, Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such more restrictive terms for the benefit of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis pointseach Facility; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, furtherhowever, that if the reserve adjusted Eurodollar Rate applicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant applicable only to revolving Indebtedness, the Previously Absent Financial Maintenance Covenant shall be automatically included in this agreement only for the benefit of each Revolving Facility (as defined below) and not for the benefit of any Facility in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loanshereunder). (fc) Each (i) Incremental Joinder Commitments shall become effective under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender (who shall, upon the effectiveness thereof, become a Lender for all purposes in connection with this Agreement), if any, and the Administrative Agent. The Incremental Agreement may, subject to Section 2.25(d), without the consent of any other LendersLender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the Borrower Borrower, to effect the provisions of this Section 2.252.25 (including, in connection with any Increased Revolving Commitments, to reallocate Revolving Extensions of Credit on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) and for the avoidance occurrence of doubt, any extension of credit thereunder shall be subject to only the satisfaction of such conditions as the parties thereto shall agree and as set forth in this Section 2.25 shall supersede 2.25. The Borrower will use the proceeds of the Incremental Facilities for any provisions in Section 10.7 or 10.1 to the contrarypurpose not prohibited by this Agreement. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Mavenir Private Holdings II Ltd.)

Incremental Loans. (a) At Any Borrower may at any time or from time to time after the Closing Third Restatement Effective Date, by notice from the Borrower may by written notice Company to the Administrative Agent elect to and the Lenders, request (Aa) prior to one or more additional tranches of term loans or additional Loans of the Revolving Termination Date, same Class of Term Loans as an existing Class of Term Loans (the “Incremental Term Loans”) or (b) one or more increases in the amount of the Revolving Credit Commitments (a “Revolving Facility Commitment Increase”), provided that: (Bi) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall exist; provided that to the extent the proceeds of any such Incremental Term Loan are to be used to finance an Acquisition permitted hereunder, then this clause (i) shall not be applicable so long as no Event of Default existed at the time the acquisition agreement relating to such Acquisition was entered into; (ii) immediately after giving effect to the borrowing of such Incremental Term Loans or the establishment of one or more new revolving credit commitments such Revolving Commitment Increase (any such new commitments, collectively with any and (x) assuming all Revolving Facility IncreaseCommitment Increases were fully drawn and (y) excluding the cash proceeds of the Incremental Term Loans and/or Revolving Commitment Increases from cash for purposes of calculating the Secured Debt Ratio), the “New Revolving Credit Commitments”), Company shall be in compliance with the covenant set forth in Section 7.09; (Ciii) prior to the Term Maturity Date, the establishment each tranche of one or more new term loan commitments which may be of the same tranche as such existing Incremental Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New each Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 individually 25,000,000 and shall be in integral multiples an increment of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, 1,000,000; (xiv) together with the aggregate principal amount of [Reserved]; (v) any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), Term Loans (1) shall not mature earlier than the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and Term A Loan Maturity Date, (2) if there are shall not have a Weighted Average Life to Maturity that is shorter than the then remaining Weighted Average Life to Maturity of then existing Term A Loans and (3) shall have the interest rates, upfront fees and OID for any unsecured Series of Incremental Notes outstanding, Term Loans as agreed between the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as applicable Borrower and the Incremental Lenders providing the applicable Series of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments Term Loans; (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that vi) in no event shall the New Revolving Credit Commitments exceed $30,000,000Incremental Term Loans of any Series be entitled to participate on a greater than pro rata basis with the Term A Loans then outstanding in any mandatory prepayment pursuant to this Agreement; and (vii) except to the extent contemplated above or as set forth in this Agreement, all other terms of any Incremental Term Loans shall either be substantially the same as the terms of the Term A Loans (including mandatory prepayment requirements) or shall be reasonably satisfactory to the Administrative Agent. Each notice from the Company pursuant to this Section 2.01(c) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender (but no existing Lender will have any obligation to make a portion of any Incremental Term Loan or any portion of any Revolving Commitment Increase and no Borrower shall have any obligation to offer any Series of Incremental Term Loans or any Revolving Commitment Increase to existing Lenders) or by any other bank or other financial institution (any such notice shall specify (A) the date (each, existing Lender or other bank or other financial institution being called an “Increased Amount DateIncremental Lender) on which the Borrower proposes ), provided that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (eachIssuing Lender, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such PersonIncremental Lender’s making such Incremental Term Loans or providing such Incremental Commitments if Revolving Commitment Increases to the extent any such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 10.04(b) for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreementto such Incremental Lender. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Incremental Term Loans of such tranche made and Revolving Commitment Increases shall be established pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments to an amendment (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental LoanAmendment”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranchethis Agreement and, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitmentsappropriate, the respective interests in such Revolving Lender’s Revolving Commitmentsother Loan Documents, in each case subject to executed by the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan IncreaseCompany, any New Term Loans shall Subsidiary Borrower that will be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Incremental Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term FacilityLoans, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans each Incremental Lender and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Administrative Agent. The Incremental Joinder Agreement Amendment may, without the consent of any other Lendersparty, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.252.01(c). In connection with any Incremental Amendment, the Obligors shall deliver such customary opinions and instruments as may be reasonably requested by the Administrative Agent for purposes of ensuring the avoidance enforceability of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 the Loan Documents after giving effect to the contrary. (g) The such Incremental Amendment. Any Incremental Term Loans and Commitments extended or established pursuant to this paragraph any Incremental Amendment shall constitute a separate “Series” of Incremental Term Loans hereunder. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.01, (a) each Revolving Credit Lender immediately prior to such increase will automatically and Commitments underwithout further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each, a “Revolving Commitment Increase Lender”), and shalleach such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, each Revolving Commitment Increase Lender shall purchase at par such portions of each other Revolving Credit Lender’s Revolving Credit Loans as the Administrative Agent may specify so that the Revolving Credit Loans are held by each Revolving Credit Lender (including each Revolving Commitment Increase Lender) on a pro rata basis in accordance with their respective Applicable Percentages.

Appears in 1 contract

Sources: Credit Agreement (Lamar Media Corp/De)

Incremental Loans. (a) At any time or from time to time after the Closing Date and prior to the Latest Maturity Date, the Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request the addition to this Agreement of (Ai) prior to an incremental revolving credit facility in the form of an increase in the Revolving Termination Date, one or more increases in Facility effected pursuant to either (x) additional commitments under any existing Class of the amount of Revolving Commitments (a “any such increase in such Revolving Facility Increase”Commitments (including in respect of any existing Other Revolving Commitment of any Other Revolving Commitment Series), an “Incremental Revolving Commitment”) or (By) the establishment addition of one or more a new tranche of revolving credit commitments with pricing, maturity and/or other terms different from then existing Revolving Commitments as provided in this Section 2.21 (any such new additional tranche of revolving commitments, collectively with any “Other Incremental Revolving Facility Increase, the “New Revolving Credit Commitments”), (Cii) prior Incremental Securitization Refinancing Facilities (as defined below) in the form of a new tranche of term loans or an increase in the Revolving Facility pursuant to the Term Maturity Dateincurrence of Incremental Revolving Credit Commitments or Other Incremental Revolving Commitments, the establishment of or (iii) one or more new tranches of term loan commitments which may be loans (together with any new tranche of term loans incurred in the same tranche as form of an Incremental Securitization Refinancing Facility, collectively “Incremental Refinancing Term Loans”) constituting Refinancing Indebtedness in respect of Permitted First Priority Debt (an “Incremental Senior Debt Refinancing Facility”), or any combination thereof (such existing Incremental Revolving Commitments, Other Incremental Revolving Commitments, Incremental Refinancing Term Loans (a “Term Loan Increase”) in the form of either an Incremental Securitization Refinancing Facility or a separate tranche of new term loans (collectively with any Term Loan Increasean Incremental Senior Debt Refinancing Facility, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitmentscollectively, the “Incremental CommitmentsFacilities”); provided, however, that upon the effectiveness of any such Incremental Facility, no Default shall exist and the Borrower shall, if a Financial Covenant Effectiveness Period is then occurring, be in compliance with Section 6.12 (calculated, in the case of clause (y), on a pro forma basis to give effect to (1) any borrowing under the Incremental Facility (with any Revolving Commitments thereunder being deemed to be fully drawn), (2) any substantially simultaneous repayments of existing Revolving Loans and FILO Loans, (3) in the case of any Incremental Securitization Refinancing Facility, any substantially simultaneous repayments or repurchases of Third Party Interests or Indebtedness incurred under Section 6.01(a)(xvi)(A) (and the related repurchases of Securitization Assets and cessation of future purchases of Securitization Assets)), and (4) in the case of any Incremental Senior Debt Refinancing Facility, any substantially simultaneous repayments or repurchases of Permitted First Priority Debt and provided, further, that no Split-Priority Term Loan Debt may be incurred as an Incremental Facility hereunder. Each The Incremental Commitment Facilities shall (i) be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with excluding the aggregate principal amount of any Incremental Notes, Securitization Refinancing Facilities) not in excess of $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y)300,000,000, (1ii) rank pari passu in right of payment and of security with the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 other Loans, and (2iii) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that if such Incremental Commitments Facility is an increase in the Revolving Facility pursuant to any Incremental Revolving Commitment, such Incremental Facility shall be effectivemade on the same terms (including, which shall be a date after the date on which such notice is delivered to the Administrative Agent without limitation, interest, payment and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitmentmaturity terms), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth conditions as the applicable existing Class of Revolving Commitments to which such Incremental Revolving Commitments relate (it being understood that customary arrangement or commitment fees payable to Arrangers or one or more Lenders or Additional Lenders participating in Section 10.6(c) such increase, as they would otherwise the case may be, may be subject different from those paid with respect to the existing Revolving Commitments of the existing Revolving Lenders on or prior to the Closing Date or with respect to any purchase by or assignment to such Affiliated other Lender of Term Loans in connection with any other Incremental Facility), and (zB) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to if such Incremental Commitments, as applicable; (2) the Incremental Commitments will share Facility is an increase in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected Revolving Facility pursuant to one Other Incremental Revolving Commitments or more Joinder Agreements if such Incremental Facility is in the form of Incremental Refinancing Term Loans, (each, an “x) such Incremental Joinder Agreement”) executed and delivered Facilities have such pricing as may be agreed by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, Borrower and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice any such Incremental Refinancing Term Loans, shall amortize in a manner, and be subject to mandatory prepayments (if any) on terms, acceptable to the Administrative Agent, and mature no earlier than the Latest Maturity date of the FILO Facility and any Revolving Lender with respect to an increase other then existing Incremental Refinancing Term Loans and (z) otherwise be treated hereunder no more favorably than, in the applicable case of Other Incremental Revolving Commitments, the respective interests Revolving Loans and Revolving Commitments (other than any Revolving Loan under Other Revolving Commitments of any Revolving Commitment Series), and in such the case of Incremental Refinancing Term Loans, the outstanding FILO Loans and the FILO Facility and any other Incremental Refinancing Term Loans; provided, that the terms and provisions applicable to any Other Incremental Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Commitments or Incremental Refinancing Term Loans and New Term Commitments may provide for additional or different financial or other covenants applicable only during periods after the New Revolving Credit Loans and New Revolving Credit Commitments, as Latest Maturity Date that is in effect on the case may be, date of any tranche effectiveness of such Incremental Facility. At no time shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of Total ABL Outstandings at such New Term Loans; time exceed (ii) (A) the final maturity date of any tranche ABL Borrowing Base Amount in effect at such time, and the proceeds of the New Term Loans Incremental Facilities shall be no earlier than used solely for the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as purposes set forth in this Section 2.25(e)(vi); 5.10, provided that, notwithstanding anything to that the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments proceeds of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date Incremental Securitization Refinancing Facilities shall be made on a pro rata basis with all other Revolving Commitments on used solely for the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as purposes specified in the applicable penultimate sentence of this Section 2.21 and the proceeds of any Incremental Joinder Agreement; (vi) Senior Debt Refinancing Facility shall be used solely to repay Permitted First Priority Debt and interest and other amounts relating thereto that can be financed with regards to any New Term Loan, if the applicable interest rate Refinancing Indebtedness relating to such New Term Loan exceeds Permitted First Priority Debt. Such notice shall set forth the interest rate requested amount and Class of Incremental Facilities, and shall offer each Lender the opportunity to offer a commitment (the “Incremental Commitment”) to provide a portion of the initial Term Incremental Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time giving written notice of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable offered commitment to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower within a time period (the “Offer Period”) to be specified in the Borrower’s notice; provided, however, that no existing Lender will be obligated to subscribe for any portion of such commitments. In the event that, at the expiration of the Offer Period, Lenders shall have provided Commitments in an aggregate principal amount greater than the total amount of the Incremental Facility initially requested by the Borrower, the commitments of the Lenders to the Incremental Facility shall be allocated ratably among the Lenders as agreed to among the Borrower and the Administrative Agent. In the event that, at the expiration of the Offer Period, Lenders shall have provided commitments in an aggregate principal amount less than the total amount of the Incremental Facility initially requested by the Borrower, the Borrower may request that Incremental Facility commitments be made in a lesser amount equal to such commitments and/or shall have the right to arrange for one or more Additional Lenders to extend commitments to provide a portion of the Incremental Facility in an aggregate principal amount equal to the unsubscribed amount of the initial request; provided that the Additional Lenders shall be offered the opportunity to provide the Incremental Facility only on terms previously offered to the existing Lenders pursuant to the immediately preceding sentence. Commitments in respect of Incremental Facilities will become Commitments under this Agreement pursuant to an amendment to this Agreement (such an amendment, an “Incremental Facility Amendment”) executed by each of the Borrower, each Subsidiary Loan Party, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 of this Agreement as in effect on the provisions Closing Date, such Incremental Facility (assuming that it is fully drawn) being permitted under each indenture or other agreement governing any Material Indebtedness (giving pro forma effect to all prepayments, repayments, defeasances and discharges of Indebtedness to be effected with the proceeds of such Loans as certified in writing by a Responsible Officer of the Borrower) and such other conditions as are specified in the applicable Incremental Facility Amendment. For purposes of this Section 2.252.21, “Incremental Securitization Refinancing Facility” means any Incremental Facility to the extent that the proceeds of the Loans incurred thereunder are used by the Borrower or a Subsidiary Loan Party on the date such Loans are made to repay or repurchase Third Party Interests or Indebtedness incurred pursuant to Section 6.01(a)(xvi)(A) (or repurchase Securitization Assets that have been sold, conveyed or otherwise transferred pursuant to any Securitization), provided that, upon such repayment or repurchase, (x) no Third Party Interests or Indebtedness incurred pursuant to Section 6.01(a)(xvi)(A) remains outstanding, (y) all commitments of the Borrower and for the Subsidiaries to sell, convey or otherwise transfer Securitization Assets pursuant to any Securitization are terminated and (z) all Securitization Assets that remain outstanding and were previously sold, conveyed or otherwise transferred pursuant to any Securitization are repurchased by the Borrower or a Subsidiary Loan Party. For the avoidance of doubt, this Section 2.25 Securitization Refinancing Indebtedness shall supersede any provisions in Section 10.7 or 10.1 to the contrarynot constitute an Incremental Facility. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Rite Aid Corp)

Incremental Loans. (a) At any time or from time prior to time after the Closing Maturity Date, the U.S. Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new incremental revolving credit commitments (any such new commitmentsincremental revolving credit commitment, collectively with an “Incremental Loan Commitment”) to make incremental revolving credit loans (any Revolving Facility Increasesuch incremental revolving credit loans, the an New Revolving Credit CommitmentsIncremental Loan”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $200,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment shall not be less than $20,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the U.S. Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to Administrative Agent. The U.S. Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent Agent, the Issuing Lender and the Swingline Lender, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Commitments, Loan Commitment; (B) each Incremental Loan shall be a “Revolving Credit Loan” for all purposes hereof and shall be subject to the same terms and conditions as applicable; (2) the Incremental Commitments will share in Revolving Credit Loans and shall be guaranteed with the Collateral other Extensions of Credit on a pari passu basis; ; (3C) the such Incremental Commitments, as applicable, Loan Commitments shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) agreements in form and substance satisfactory to the Administrative Agent and the U.S. Borrower executed and delivered by the U.S. Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such applicable Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans agreement or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement agreements may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.254.14); and (D) the U.S. Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, and without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of the U.S. Borrower authorizing such Incremental Loan (for the avoidance of doubt, this resolutions duly adopted by the board of directors (or equivalent governing body) of the U.S. Borrower delivered pursuant to Section 2.25 5.1(b)(ii) which authorize such Incremental Loan shall supersede be sufficient so long as such resolutions are certified as of the applicable Increased Amount Date as remaining in full force and effect) reasonably requested by the Administrative Agent in connection with any provisions in Section 10.7 or 10.1 to the contrarysuch transaction. (gb) The outstanding Revolving Credit Loans and Commitments extended or established Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Credit Loans) in accordance with their revised Revolving Credit Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loans) agree to make all payments and adjustments necessary to effect such reallocation and the U.S. Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment). (c) On any Increased Amount Date on which any Incremental Loan Commitment becomes effective, each Incremental Lender with an Incremental Loan Commitment shall become a Lender hereunder with respect to such Incremental Loan Commitment. Thereafter it shall be entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and shall be included in any determination of the Required Lenders. The Incremental Lenders will not constitute a separate voting class for any purposes under this paragraph shall constitute Loans and Commitments under, and shallAgreement.

Appears in 1 contract

Sources: Credit Agreement (Owens Corning)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more Incremental Term Loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Credit Commitments (a an Incremental Revolving Facility Increase”)Credit Commitment” and, (B) together with the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility IncreaseIncremental Term Loan Commitments, the “New Incremental Loan Commitments”) to make incremental Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Loans made pursuant to such Incremental Revolving Credit Commitments, the “Incremental CommitmentsRevolving Credit Increase). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually , and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental NotesTerm Loans, $100,000,000 plus (y) an additional amount of the “Incremental Commitments so long as in the case of this clause (yLoans”), ; provided that (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 aggregate amount for all such Incremental Loan Commitments shall not exceed $200,000,000 and (2) the aggregate amount for each Incremental Loan Commitment shall not be less than a minimum principal amount of $25,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person that provides an Incremental Loan Commitment, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Commitments, as applicable; Loan Commitment and (2) the making of any Incremental Loans pursuant thereto; (B) the Borrower shall have delivered to the Administrative Agent (which shall promptly make such information available to the Lenders in accordance with its customary practice) an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma basis with the financial covenants set forth in Section 9.15 after giving effect to (1) any Incremental Loan Commitment (and assuming that the Revolving Credit Commitments will share (including any Incremental Revolving Credit Commitments) are fully drawn), (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition or other contemplated use of proceeds consummated in connection therewith; (C) the Collateral proceeds of any Incremental Loans shall be used for ongoing working capital requirements and other general corporate purposes of the Borrower and its Restricted Subsidiaries (including Permitted Acquisitions); (D) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Incremental Term Loan Increase, any New Term Loans shall be on (the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by set forth the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental relevant Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallAgreement):

Appears in 1 contract

Sources: Credit Agreement (CST Brands, Inc.)

Incremental Loans. (a) At any time or from time Each Incremental Revolving Facility Lender hereby agrees, severally and not jointly, to time after the Closing Date, provide an Incremental Revolving Credit Commitment to the Borrower may by written notice on the Amendment No. 1 Effective Date in Dollars in an aggregate principal amount equal to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “set forth opposite such Incremental Revolving Facility Increase”)Lender’s name on Schedule I attached hereto (each, (B) the establishment of one or more new revolving credit commitments (any such new commitmentsan “Incremental Revolving Credit Commitment” and, collectively with any Revolving Facility Increasecollectively, the “New Incremental Revolving Credit Commitments”), on the terms set forth herein and in the Credit Agreement (Cas amended hereby), and subject to the conditions set forth herein. The Incremental Revolving Credit Commitments shall be deemed to be “Revolving Credit Commitments” as defined in the Credit Agreement (as amended hereby) for all purposes of the Loan Documents having terms and provisions identical to those applicable to the Revolving Credit Commitments outstanding immediately prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans Amendment No. 1 Effective Date (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Existing Revolving Credit Commitments, the “Incremental Commitments). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Each Incremental Revolving Facility Lender (i) confirms that a copy of the Credit Agreement and the other applicable Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and make an Incremental Revolving Credit Commitments are effected through a Commitment, have been made available to such Incremental Revolving Facility IncreaseLender; (ii) agrees that it will, subject to independently and without reliance upon RBC Capital Markets (“RBCCM”) and BMO Capital Markets Corp. (together with RBCCM, the satisfaction of “Incremental Amendment Arrangers”), each in its capacity as the foregoing terms joint lead arranger and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender joint bookrunner with respect to this Amendment, the New Revolving Administrative Agent, or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Commitments Agreement or the other applicable Loan Documents, including this Amendment; (iii) appoints and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through authorizes the establishment of one or more new revolving credit commitments or new Term Loans made Administrative Agent and the Collateral Agent to take such action as agent on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving its behalf and to exercise such powers under the Credit Commitments, Agreement and the other Loan Documents as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject delegated to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche Administrative Agent and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit CommitmentsCollateral Agent, as the case may be, of any tranche shall be by the terms thereof, together with such powers as agreed between the Borrower are reasonably incidental thereto; and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of acknowledges and agrees that upon the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Amendment No. 1 Effective Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) such Incremental Revolving Facility Lender shall be a “Lender”, “Additional Revolving Lender” and a “Revolving Lender” under, and for all purposes of, the borrowing Credit Agreement and repayment (except for (A) payments of interest the other Loan Documents, and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (shall be subject to clause (3) below)) and bound by the terms thereof, and shall perform all the obligations of Loans with respect to New and shall have all rights of a Lender and an Incremental Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount DateFacility Lender thereunder, (2) subject to each of the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit each Incremental Revolving Facility Lender shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of “Additional Revolving Credit Loans with respect to, Commitment” and termination of, New a “Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with Commitment” for all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders purposes under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may and (3) the Incremental Revolving Loans of each Incremental Revolving Facility Lender shall each be necessary or appropriate, in an “Additional Revolving Loan” and a “Revolving Loan” (and have the reasonable opinion of same terms for all purposes under the Administrative Agent Credit Agreement and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contraryother Loan Documents). (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Victory Capital Holdings, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the The Borrower may on one or more occasions, by written notice to the Administrative Agent elect to Agent, request the making of Incremental Loans; provided that (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (Bi) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount making of any Incremental Notes, $100,000,000 plus Loans shall require the prior written consent of the Required Lenders and (yii) an additional the aggregate amount of all Incremental Commitments so long as in Loans after the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event Effective Date shall the New Revolving Credit Commitments not exceed $30,000,00010,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such the Incremental Commitments shall Loans to be effectivemade, which shall be a date not less than 10 Business Days (or such shorter period as may be agreed to by the Administrative Agent and the Required Lenders) after the date on which such notice is delivered to the Administrative Agent Agent, and (B) the identity amount of each existing Lender or other Person that is an Assignee the Incremental Loans being requested (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided it being agreed that (wx) any Lender approached to provide all or a portion of the any Incremental Commitments Loan may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender Loan and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect any Person that the Borrower proposes to become an Incremental Lender, if such Person is not then a Lender, must be reasonably acceptable to the Administrative Agent and the Required Lenders). (b) The terms and conditions of any Incremental Loans shall be, except as otherwise set forth herein or in the applicable Incremental Amendment, identical to those of the New Term CommitmentsMoney Loans that are then outstanding, any Affiliated Lender providing a New Term Commitment provided that the only conditions to funding of such Incremental Loans contained in the applicable Incremental Amendment shall be subject to the same restrictions conditions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and 4.02 (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default for the purposes of determining whether or Event not any Borrowing Base Deficiency exists or would result from the making of Default any Incremental Loans, such Incremental Amendment shall exist on amend the definition of Advance Rate to increase the percentage as necessary to permit such Increased Amount Date after giving effect Incremental Loans), to the extent applicable at such time to such Incremental Commitments, as applicable; Loans. (2c) the Any Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, Loans shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) Amendments executed and delivered by the Borrower, the New Revolving Credit each Incremental Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of providing such Incremental Loans to and the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement Amendment may, without with the consent of any other the Required Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Required Lenders, to give effect to the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrarySection. (gd) The Upon the making of an Incremental Loan by any Incremental Lender, such Incremental Lender shall be deemed to be a “Lender” hereunder, and henceforth shall be entitled to all the rights of, and benefits accruing to, Lenders hereunder and shall be bound by all agreements, acknowledgements and other obligations of Lenders hereunder and under the other Loan Documents. Upon the making of any Incremental Loans, such Incremental Loans shall be deemed to be and Commitments extended or established treated as New Money Loans for all purposes of this Agreement. (e) Incremental Roll-Up Loans shall be deemed made pursuant to this paragraph such terms as provided in the Final DIP Order. After such deemed making, the terms and conditions of any Incremental Roll-Up Loans shall constitute be identical to those of the Roll-Up Loans and Commitments under, and shallthat are then outstanding.

Appears in 1 contract

Sources: Superpriority Senior Secured Priming Debtor in Possession Credit Agreement (Cloud Peak Energy Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, establishment of one or more increases in the amount of Revolving Commitments Aggregate Commitment (a each such increase, an Revolving Facility Incremental Commitment Increase”)” and, (B) the establishment of one or more new revolving credit commitments (any all such new commitmentsincreases, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitmentscollectively, the “Incremental CommitmentsCommitment Increases”) to make incremental Revolving Credit Loans (any such incremental Revolving Credit Loan, an “Incremental Loan”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for all such Incremental Commitment Increases shall not (as of any date of incurrence thereof) exceed the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 amount of $50,000,000 and (2) the total aggregate amount for each Incremental Commitment Increase (and the Incremental Loans made thereunder) shall not be less than the amount of $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Commitment Increase shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Commitment Increase (B) the identity of each existing any such Person, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Commitment Increase may elect or decline, in its sole discretion, to provide an such Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Increase. Any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments Increase shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Commitments, as applicable; Commitment Increase; (2B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a pro forma basis with the financial covenants set forth in Section 9.14 both before and after giving effect to any Incremental Commitments will share in Commitment Increase and the Collateral making of any Incremental Loans on such Increased Amount Date; (C) each Incremental Commitment Increase (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be guaranteed, and to the extent a Perfection Trigger Event has occurred or thereafter occurs, secured with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (yD) in the case of each notice to any Revolving Lender with respect to an increase in Incremental Commitment Increase (the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) terms of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, the relevant Lender Joinder Agreement to the extent the Incremental Lender is not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees Lender hereunder at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallincrease):

Appears in 1 contract

Sources: Credit Agreement (Great Lakes Dredge & Dock CORP)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to Revolving Credit Increase” and, together with the contrary hereinIncremental Term Loans, the Incremental Loans ”); provided that (1) after giving effect to any such Incremental Loans, the aggregate Revolving Commitments shall not exceed, (x) together with plus the aggregate principal amount of all Initial Term Loans and Incremental Term Loans outstanding as of such date shall not (as of any Incremental Notes, date of incurrence thereof) exceed $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), 250,000,000 and (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share in the Collateral on a pari passu basis; Loans pursuant thereto and (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements any Permitted Acquisition consummated in connection therewith; (each, an “Incremental Joinder Agreement”B) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which Lenders shall be recorded in the Register; (4) have received from the Borrower shall be an Officer’s Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 7.1 (assuming a borrowing of 9.14 based on the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made financial statements most recently delivered pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions 8.1(a) or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans8.1(b); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date both before and after giving effect (on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject a Pro Forma Basis) to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Incremental Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallCommitment,

Appears in 1 contract

Sources: Credit Agreement (Fidelity National Financial, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental NotesTerm Loans, $100,000,000 plus (y) an additional amount of the “Incremental Commitments so long as in the case of this clause (yLoans “), ; provided that (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $125,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $25,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) either (x) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith or (y) if the Lenders providing such Incremental Term Loan in order to finance a Permitted Acquisition have agreed to a “funds certain” provision (which provision does not require as a condition to funding thereof that no Default or Event of Default has occurred), then no no Event of Default under Section 10.1(a), (b), (h) or (i) exists at the time such Permitted Acquisition is consummated); (B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the (1) Borrower is in compliance with the financial covenant set forth in Section 9.13 (whether or not then applicable) based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided in the Collateral case of an Incremental Term Loan the proceeds of which will be used to finance a Permitted Acquisition, if the Lenders providing such Incremental Term Loan have agreed to a “funds certain” provision, only the Specified Representations shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct as of such earlier date in all respects)); (D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (bF) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice to any Revolving Lender with respect to an increase in Incremental Term Loan (the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) terms of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental relevant Lender Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall):

Appears in 1 contract

Sources: Credit Agreement (Us Ecology, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit incremental term loan commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new incremental term loan commitments which may be of the same tranche as such existing Term Loans (a commitment, an Incremental Term Loan IncreaseCommitment”) or a separate tranche of new to make an incremental term loans loan (collectively with any Term Loan Increasesuch incremental term loan, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the an “Incremental CommitmentsTerm Loan). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event the total aggregate amount for all such Incremental Term Loan Commitments shall the New Revolving Credit Commitments not (as of any date of incurrence thereof) exceed $30,000,000100.0 million. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Term Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Term Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Term Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Loan Commitment. Any Incremental Term Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsTerm Loan Commitment, as applicable; (2) the making of any Incremental Commitments Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (ii) the Administrative Agent and the Lenders shall have received from the Borrower a compliance certificate of the chief financial officer or treasurer in form reasonably acceptable to the Administrative Agent demonstrating that the Borrower will share be in compliance on a Pro Forma Basis with a Consolidated Senior Secured Leverage Ratio of 2.50 to 1.00 both before and after giving effect to (1) any Incremental Term Loan Commitment, (2) the Collateral making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (iii) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (iv) each Incremental Term Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (yv) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Incremental Term Loan Increase, any New Term Loans shall be on (the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by set forth the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental relevant Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallAgreement):

Appears in 1 contract

Sources: Credit Agreement (Kronos Worldwide Inc)

Incremental Loans. (ai) At any time or commencing on the day following the Closing Date through but excluding the Term Loan Maturity Date, provided that no Event of Default has occurred and is continuing, Borrower may, from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases to the Term Loan and/or the funding of a new Loan from one or more existing Lenders or, subject to Section 2.1(d)(iii), from other assignees acceptable to Agent and Borrower (each, an “Incremental Term Loan”), in an aggregate amount for all such Incremental Term Loans not to exceed $20,000,000. Each Incremental Term Loan shall increase the Initial Loan, Credit Line or Late Withdrawal Loan as designated in writing by Borrower and shall be governed by the terms of Section 2.1(a), 2.1(b) or 2.1(c), as applicable. Any Incremental Term Loan shall be in the amount of Revolving Commitments at least $1,000,000 (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal lower amount that is not less than $5,000,000 individually represents all remaining availability pursuant to this Section 2.1(d)) and in integral multiples of $1,000,000 in excess of thereof (or such lower amount that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made represents all remaining availability pursuant to this Section 2.252.1(d); provided that ). (ii) Upon the funding of each Incremental Term Loan, the scheduled amortization payments set forth in no event Section 2.1(a), (b) or (c) (as applicable) shall be recalculated and increased, commencing in the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that first full quarter after such Incremental Commitments Term Loan is funded, by aggregating the Term Loans made on or after the Closing Date with all Incremental Term Loans, and such amended amortization schedule shall be effectiveeffective commencing on the last day of the first full fiscal quarter after the Incremental Term Loan is funded. (iii) To the extent any Incremental Term Loan shall be provided by any assignee, which it shall be a date after condition precedent to the date on funding of the applicable Incremental Term Loan that any prospective Lender, Borrower and Agent have signed a joinder agreement to this Agreement (a “Joinder”), in form and substance reasonably satisfactory to Agent, to which such notice is delivered prospective Lender, Borrower, and Agent are party. (iv) No Lender shall be obligated to the Administrative participate in any Incremental Term Loan, and each such Lender’s determination to participate shall be in such Lender’s sole and absolute discretion. Agent and (B) the identity of may invite each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment Term Loan (it being understood that there is no obligation to approach any existing Lenders Lender shall be obligated to provide an Incremental Term Loan) or Agent and Borrower may invite any prospective lender that is acceptable to Agent and Borrower to become a Lender in connection with the proposed Incremental Term Loan. (v) Upon the funding of any Incremental Commitment)Term Loan, (x) all references in this Agreement and any other Loan Document to the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject deemed, unless the context otherwise requires, to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) include the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental CommitmentsTerm Loan, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made advanced pursuant to this Section 2.252.1(d) and (ii) all references in this Agreement and any other Loan Document to the Term Loan shall be deemed, and in any eventunless the context otherwise requires, after giving effect to any acquisitions or dispositions during include the relevant determination period or simultaneously with the borrowing of commitment to advance an amount equal to the Incremental Loans); and (5) the Borrower shall pay, or cause Term Loans contemplated pursuant to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lenderthis Section 2.1(d). (bvi) On any Increased Amount Date on which New Revolving Credit Commitments are effected through Any Incremental Term Loan established pursuant to this Section 2.1(d) shall constitute a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such trancheunder the Loan Documents, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans in respect of the Collateral and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing Secured Obligations in respect of the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Loan and Security Agreement (ProQR Therapeutics N.V.)

Incremental Loans. (a) At any time or from time to time after the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect from time to time, request (A) prior Incremental Loan Commitments in an amount not to exceed the Revolving Termination Date, Incremental Loan Amount from one or more increases in Incremental Lenders, all of which must be Eligible Assignees. Such notice shall set forth (i) the amount of Revolving the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a “Revolving Facility Increase”minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (Bii) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is delivered an Affiliate of a Lender or a Related Fund). The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and (B) such other documentation as the identity Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Incremental Lender” or “New Term Lender,” as applicable) to whom . Without the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such prior written consent of the Administrative Agent, (i) the Issuing Lender and Swingline Lender would final maturity date of any Other Loans shall be required under Section 10.6 for an assignment no earlier than the Maturity Date, (ii) the average life to maturity of the Other Loans or Commitments shall be no shorter than the remaining average life to maturity of the Loans, (iii) if the initial yield on such Other Loans (as reasonably determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans (taking into account any interest rate floors with respect to such Person, Other Loans) and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee being referred to herein as “OID”), the amount of such OID (expressed as a percentage of the Other Loans) divided by the lesser of (A) the average life to maturity of such Other Loans and (B) four (4) exceeds the sum of (I) the Applicable Margin above the Adjusted LIBO Rate (taking into account any interest rate floors) then in effect for Eurodollar Loans and (II) the amount of OID with respect to New Term Commitmentsexisting Loans (expressed as a percentage of the existing Loans) divided by four, by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans and (iv) if the covenants, events of default and guarantees of any Affiliated such Indebtedness (excluding, for the avoidance of doubt, interest rates, interest margins, rate floors, fees, funding discounts, original issue discounts and voluntary prepayment or voluntary redemption premiums and terms) (when taken as a whole) are materially more favorable to the lenders or holders providing such Other Loans than those applicable to the Loans (when taken as a whole) (other than covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of incurrence, issuance or obtainment of such Other Loans), the Loans will be modified to reflect such more favorable terms (taken as a whole) and the Borrower and the Administrative Agent may amend this Agreement for such purpose without the consent of any other party hereto. The Administrative Agent shall promptly notify each Lender providing as to the effectiveness of each Incremental Loan Assumption Agreement. Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Incremental Loans and Other Loans shall have the same guarantees as, and be secured on a New Term pari passu basis with, the Loans. (c) Notwithstanding the foregoing, no Incremental Loan Commitment shall be subject to become effective under this Section 2.22 unless (i) on the same restrictions date of such effectiveness, (x) the representations and warranties set forth in Section 10.6(cArticle III and in each other Loan Document shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans on and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (1or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date and (y) at the time of and immediately after the giving effect to the Borrowing of Incremental Loans, no Default or Event of Default shall exist on have occurred and be continuing, and the Administrative Agent shall have received a certificate to that effect dated such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on date and executed by a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by Responsible Officer of the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, (ii) all fees and expenses owing to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing Lenders in respect of such increase shall have been paid, (iii) except as otherwise specified in the applicable Incremental Loans Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01 of the Original Credit Agreement and (iv) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages on the Real Estate Collateral Properties as security for the Obligations, as determined by the Administrative Agent in its reasonable discretion, (x) the applicable Loan Party to any Mortgages shall have entered into, and delivered to the Administrative Agent, at the Collateral direction and in the sole discretion of the Administrative Agent a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent, (y) the Borrower shall have caused to be delivered to the Administrative Agent for the benefit of the Lenders an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of such Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances that may then or thereafter take priority over the Lien of such Mortgages (other than any Defaulting Lender). Permitted Encumbrances) and (bz) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders Borrower shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lendershave delivered, at the principal amount thereofrequest of the Administrative Agent, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition Administrative Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of such New Revolving Commitments to Mortgages as security for the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term LoansObligations. (d) The Each of the parties hereto hereby agrees that the Administrative Agent shall notify Lenders promptly upon receipt of may, in consultation with the Borrower’s notice , take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Increased Amount Date and in respect thereof (x) Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the tranche of New Revolving Credit Commitments preceding sentence shall be subject to Section 2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, other economic consequences thereof shall be as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase set forth in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth hereinIncremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not identical to the Term Loans or Revolving Other Loans, as applicable, shall the scheduled amortization payments under Section 2.11(a)(i) required to be reasonably satisfactory to Administrative Agent. In any event: (i) made after the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence making of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Incremental Loans shall be no earlier than ratably increased by the original Term Maturity Date aggregate principal amount of such Incremental Loans and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans further increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the for all Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect necessary to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of avoid any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified reduction in the applicable Incremental Joinder Agreement; (vi) with regards amortization payments to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and were entitled before such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loansrecalculation. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Fourth Amendment Agreement (Supervalu Inc)

Incremental Loans. (a) At any time or from time prior to time after the Closing Maturity Date, as applicable, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new incremental revolving credit commitments (any such new commitmentsincremental revolving credit commitment, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan IncreaseCommitment”) or a separate tranche of new term to make incremental revolving credit loans (collectively with any Term Loan Increasesuch incremental revolving credit loans, the an New Term Commitments” and the New Term Commitments, collectively with any New Incremental Revolving Credit Commitments, the “Incremental CommitmentsLoan). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New total aggregate amount for all such Incremental Revolving Credit Commitments shall not (as of any date of incurrence thereof) exceed $30,000,000100 million. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Revolving Credit Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Revolving Credit Commitment (B) the identity of each existing Lender or other Person that is an Assignee (eachany such Person, a “New Revolving Credit Lender”). Any Lender or any New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender offered or approached to provide all or a portion of the any Incremental Commitments Revolving Credit Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental Commitments, as applicable; Revolving Credit Commitment and (2) to the extent occurring substantially simultaneously with the increase in Revolving Credit Commitments, (i) the making of any tranche of Incremental Revolving Credit Loans pursuant thereto and (ii) any Permitted Acquisition consummated in connection therewith; (B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating that the Borrower will be in compliance on a Pro Forma Basis with the financial covenants set forth in Article VIII both before and after giving effect to (1) any Incremental Revolving Credit Commitment (and assuming for these purposes that all Incremental Revolving Credit Commitments are fully drawn as Incremental Revolving Credit Loans) and (2) to the extent occurring substantially simultaneously with the increase in Revolving Credit Commitments, (i) the making of any tranche of Incremental Revolving Credit Loans pursuant thereto and (ii) any Permitted Acquisition consummated in connection therewith; (C) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of such Increase Amount Date (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; (D) the proceeds of any Incremental Revolving Credit Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (E) each Incremental Revolving Credit Commitment (and the Incremental Commitments will share in Revolving Credit Loans made thereunder) shall constitute Obligations of the Collateral Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Incremental Revolving Credit Loans and New Revolving Credit Commitments, as Loan (the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by set forth the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental relevant Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallAgreement):

Appears in 1 contract

Sources: Credit Agreement (Atlas Pipeline Partners Lp)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Aa) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loan (any such additional term loan, an “Incremental Term Loan”); or (b) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Commitment shall be in an Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”) ; provided that (i) the total aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the for all such Incremental Loan Commitments shall not exceed, (xas of any date of incurrence thereof) together with exceed $75,000,000 and (ii) the total aggregate principal amount of any for each Incremental Notes, $100,000,000 plus Loan Commitment (yand the Incremental Loans made thereunder) an additional shall not be less than a minimum principal amount of Incremental Commitments so long as in $25,000,000 or, if less, the case of this remaining amount permitted pursuant to the foregoing clause (yi), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that both the Swingline Loan Lender and (B) the identity of Issuing Lender shall consent to each existing Incremental Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes providing any portion of such an Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1i) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share in the Collateral on a pari passu basis; Loans pursuant thereto and (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements any Permitted Acquisition consummated in connection therewith; (each, an “Incremental Joinder Agreement”ii) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which Lenders shall be recorded in the Register; (4) have received from the Borrower shall be a Compliance Certificate demonstrating, in pro forma form and substance reasonably satisfactory to the Administrative Agent, that the (1) Borrower is in compliance with the financial covenants specified in Section 7.1 Sections 9.13 and 9.14, and (assuming a borrowing 2) Consolidated Total Net Leverage Ratio will be at least 0.25 to 1.00 less than the maximum Consolidated Total Net Leverage Ratio in effect as of the maximum amount of Loans available under Increased Amount Date pursuant to Section 9.14, in each case based on the Facilities financial statements most recently delivered pursuant to Section 8.12(a) or 8.12(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to such (x) any Incremental Loan Commitment, and (y) the making of any Incremental Commitments previously made Loans pursuant thereto (with any Incremental Loan Commitment being deemed to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); be fully drawn) and (5z) the Borrower shall pay, or cause to be paid, all fees and expenses owing any Permitted Acquisition consummated in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).connection therewith; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (aiii) each of the Revolving Lenders representations and warranties contained in Article 6 shall assign be true and correct in all material respects, except to each of the New Revolving Credit Lendersextent any such representation and warranty is qualified by materiality or reference to Material Adverse Change, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereofin which case, such interests representation and warranty shall be true, correct and complete in the New Revolving Credit Loans (as defined below) outstanding all respects, on such Increased Amount Date with the same effect as shall be necessary in order that, after giving effect to all such assignments if made on and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition as of such New Revolving Commitments to the Revolving Commitmentsdate (except for any such representation and warranty that by its terms is made only as of an earlier date, (b) each New Revolving Commitment which representation and warranty shall be deemed for all purposes a Revolving Commitment remain true and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, correct as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increaseearlier date), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms the proceeds of the New Revolving Credit Commitments and New Revolving Credit any Incremental Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except used for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage general corporate purposes of the Revolving Commitments on the Increased Amount Date (Borrower and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder its Subsidiaries (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity datesPermitted Acquisitions); (v) the New Term Loans may participate on Any proposed Incremental Lender shall join this Agreement as a pro rata basis or less than pro rata basis (but not on Lender pursuant to a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Lender Joinder Agreement; (vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with regards to any New the other Obligations on a pari passu basis; (1) in the case of each Incremental Term Loan: (I) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Administrative Agent, the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any event have a shorter weighted average life to maturity than the remaining weighted average life to maturity (as reasonably determined by the Administrative Agent) of the Term Loan or a maturity date earlier than the Term Loan Maturity Date; (II) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be the same as the Applicable Margin for the Term Loan on the applicable interest rate relating to such New Increased Amount Date; (III) any Incremental Lender making any Incremental Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal entitled to the applicable interest rate relating to such New same voting rights as the existing Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to unless otherwise agreed by the applicable margin on any initial Incremental Lenders, provided that no such agreement shall allow the Incremental Term Facility that became effective subsequent Loans to the Closing Date but be prepaid prior to the time of such New Term Loan) each Incremental Term Loan shall also be included in such calculations; provided, further, that if receive proceeds of prepayments on the reserve adjusted Eurodollar Rate (same basis as defined below) in respect of such New the Term Loan includes an interest rate floor greater than (such prepayments to be shared pro rata on the interest rate floor basis of the original aggregate funded amount thereof); and (IV) except as provided above, all other terms and conditions applicable to such initial Incremental Term FacilityLoan shall, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, except to the extent an increase otherwise provided in this Section 5.15, be identical to the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, terms and in such case the interest rate floor (but not the interest rate margin) conditions applicable to such the Term Facility shall be increased by such increased amountLoan; (vii2) in the New Term Loans and/or New case of each Incremental Revolving Credit Increase: (I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility; (II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans will rank pari passu in right (such prepayments to be shared pro rata on the basis of payment with existing Term Loans and the original aggregate funded amount thereof); and (III) the outstanding Revolving Credit Loans and Ratable Shares of Swingline Loans and Letter of Credit Obligations will be reallocated by the liens securing Administrative Agent on the New Term Loans and/or New applicable Increased Amount Date among the Lenders to the Revolving Credit Loans will rank pari passu with Facility (including the liens securing the existing Term Loans and Incremental Lenders providing such Incremental Revolving Credit LoansIncrease) in accordance with their revised Ratable Shares and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required. (f3) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.255.15, and for without the avoidance consent of doubtany other Lenders; and (4) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, this Section 2.25 shall supersede without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any provisions in Section 10.7 or 10.1 to the contrarysuch transaction. (gc) The Loans Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and Commitments extended conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or established be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. (e) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to this paragraph the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall constitute Loans and Commitments under, and shallbecome a Lender under the Revolving Credit Facility hereunder with respect to such Incremental Revolving Credit Commitment.

Appears in 1 contract

Sources: Credit Agreement (Lsi Industries Inc)

Incremental Loans. (a) At The Borrower may at any time or from time to time after the Closing Date, the Borrower may by written notice delivered to the Administrative Agent elect (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (Ai) prior to the Revolving Termination Date, one or more additional Classes of term loans and/or additional commitments of any existing Class of Term Loans (the commitments in respect of any such new Class or increase, “Incremental Term Commitments” and loans made thereunder, “Incremental Term Loans”) and/or (ii) one or more additional Classes of Revolving Commitments (the commitments of any such new Class, “Additional/Replacement Revolving Commitments”) and/or increases in the amount of Revolving Commitments of any existing Class (a any such increased commitments, Increased Revolving Facility IncreaseCommitments” and, together with any Incremental Term Commitment and Additional/Replacement Revolving Commitments, collectively, “Incremental Facilities”; and the loans under such Increased Revolving Commitments and Additional/Replacement Revolving Commitments, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that: (i) there shall be no more than three (3) separate Classes of Revolving Commitments under the Revolving Facility; (ii) no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments (subject, in the case of any Incremental Term Commitments are being used to finance a Limited Condition Acquisition, to Section 1.6(c)); (iii) subject to Section 1.6(c), the conditions of Section 5.2(a) shall be satisfied (it being understood that all references to “such date” or similar language in such Section 5.2(a) shall be deemed to refer to the effective date of such Incremental Agreement); provided that, if the proceeds of any Incremental Term Commitments are being used to finance a Limited Condition Acquisition, (A) the reference in Section 5.2(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute “Specified Representations” (the definition of which shall be agreed by the Borrower and the lenders providing such Indebtedness) and the representations and warranties in the relevant acquisition agreement the breach of which would permit the buyer to terminate its obligations thereunder or decline to consummate such Limited Condition Acquisition and (B) the establishment reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Limited Condition Acquisition; (iv) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.1, determined on a Pro Forma Basis as of one the last day of the most recently ended Test Period as if any Incremental Term Loans or more new Incremental Revolving Loans, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, and, in each case, assuming the full utilization of any unfunded revolving credit commitments provided simultaneously thereunder and any subsequent funding of the term debt borrowed or issued thereunder; and (any such new commitments, collectively with any Revolving Facility Increasev) to the extent reasonably requested by the Administrative Agent, the “New Revolving Credit Commitments”), (C) prior Administrative Agent shall have received customary legal opinions addressed to the Term Maturity DateAdministrative Agent, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” Collateral Agent and the New Term CommitmentsLenders, collectively board resolutions and officers’ certificates consistent with those delivered on the Closing Date (other than changes to such legal opinion resulting from a Change in Law, change in fact or change to counsel’s form of opinion) reasonably satisfactory to the Administrative Agent and, within 60 days (or such longer period as the Administrative Agent may agree to) after the closing date of such Incremental Facilities, completion by the Borrower and the other Credit Parties of such other actions relating to any New Revolving Credit CommitmentsMaterial Real Estate that is, or is required to be, subject to a Mortgage (or the Mortgages entered into in connection therewith) as the Administrative Agent may reasonably request in connection with such Incremental Commitments”). Facilities. (b) Each Incremental Commitment Facility shall be in an aggregate principal amount that is not less than $5,000,000 individually 10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth below) (and in integral multiples minimum increments of $1,000,000 5,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinthereof), the Incremental Commitments shall not exceed, (x) together with and the aggregate principal amount of all Incremental Facilities shall not exceed the Incremental Limit. (i) Any Incremental Term Loans (A)(1) shall be pari passu with any Incremental Notesthen-existing Class of Term Loans in right of payment and in right of security, $100,000,000 plus (2) shall not be the obligation of, or subject to any guarantee by any Person who is not also a Loan Party (or who becomes a Loan Party concurrently with the effectiveness thereof), and (3) shall not be secured by (x) a Lien on any Property in which the Collateral Agent does not have a Lien (or in which the Collateral Agent does not obtain a Lien concurrently with the effectiveness thereof) or (y) a perfected Lien on any Property in which the Collateral Agent does not have a perfected Lien (or in which the Collateral Agent does not obtain a perfected Lien concurrently with the effectiveness thereof); (B) shall not mature earlier than the maturity with respect to the Initial Term Loans; (C) shall not have a shorter Weighted Average Life to Maturity than the Initial Term Loans; (D) shall have a maturity date (subject to clause (B)), an additional amount amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts and original issue discounts as determined by the Borrower and the lenders providing the Incremental Term Loans; provided that, in the event that the Effective Yield for any such Incremental Term Loans is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for the Incremental Term Loans minus 0.50%; (E) shall, to the extent any then-existing Term Loans require ratable prepayment, share ratably with such existing Term Loans, subject to the right of the Borrower to direct the application of voluntary prepayments and unless the Borrower and the lenders providing the Incremental Commitments Term Loans elect to share in such prepayments on a less than pro rata basis; and (F) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above or terms applicable only after the Initial Term Maturity Date, any differences shall not be materially more restrictive (when taken as a whole) than the terms and conditions of the Loan Documents (when taken as a whole), as reasonably determined by the Borrower, unless such differences are consistent with then- current market terms for the applicable type of Indebtedness and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Facility. (i) The Increased Revolving Commitments shall be treated the same as the Initial Revolving Commitments in effect on the Closing Date (including with respect to maturity date thereof) and shall be considered to be part of the Initial Revolving Facility in effect on the Closing Date (it being understood that, if required to obtain Increased Revolving Commitments, the interest rate margins, rate floors and undrawn commitment fees on the Initial Revolving Commitments as in effect on the Closing Date may be increased and additional upfront or similar fees may be payable to the lenders providing the Increased Revolving Commitments) and shall be effected as an increase in the case Initial Revolving Commitments. (ii) Any Additional/Replacement Revolving Commitments (A)(1) shall be pari passu with any then-existing Class of this clause Revolving Commitments in right of payment and in right of security, (2) shall not be the obligation of, or subject to any guarantee by any Person who is not also a Loan Party (or who becomes a Loan Party concurrently with the effectiveness thereof), and (3) shall not be secured by (x) a Lien on any Property in which the Collateral Agent does not have a Lien (or in which the Collateral Agent obtains a Lien concurrently with the effectiveness thereof) or (y) a perfected Lien on any Property in which the Collateral Agent does not have a perfected Lien (or in which a Lien in favor of the Collateral Agent is perfected concurrently with the effectiveness thereof); (B) shall not mature earlier than, and shall require no scheduled amortization prior to, the Revolving Termination Date applicable to the Revolving Facility on the Closing Date and shall require no mandatory commitment reduction prior to the Revolving Termination Date applicable to the Revolving Facility on the Closing Date; (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, and premiums (1including prepayment premiums) the Senior Secured First Lien Leverage Ratio of as determined by the Borrower and its Restricted Subsidiaries would the lenders of providing such Additional/Replacement Revolving Commitments; (D) may include provisions relating to letters of credit issued thereunder, which issuances shall be no greater than 3.75 to 1.0 and on terms substantially similar (2) if there are any unsecured Incremental Notes outstandingexcept for the overall size of such subfacilities, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, fronting fees payable in each case, as connection therewith and the identity of the end letter of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effectivecredit issuer, which shall be a date after determined by the date on Borrower, the lenders of such commitments and the applicable letter of credit issuers, which such notice is delivered shall be specified in the applicable Incremental Agreement) to the terms relating to Letters of Credit with respect to the Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (BE) may otherwise have terms and conditions different from those of the identity of each existing Lender or other Person that is an Assignee (each, a “New Initial Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocationsFacility; provided that (wx) except with respect to matters contemplated by clauses (B), (C) and (D) above or terms applicable only after the Revolving Termination Date applicable to the Initial Revolving Facility, any Lender approached to provide all or differences shall not be materially more restrictive (when taken as a portion whole) than the terms and conditions of the Incremental Loan Documents (when taken as a whole), as reasonably determined by the Borrower, unless such differences shall be consistent with then-current market terms for the applicable type of Indebtedness and (y) the documentation governing any Additional/Replacement Revolving Commitments may elect or declineinclude any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Facility; provided, further, however, that if the applicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant applicable only to revolving Indebtedness, the Previously Absent Financial Maintenance Covenant shall be automatically included in its sole discretionthis agreement only for the benefit of each Revolving Facility (and not for the benefit of any Facility in respect of Term Loans hereunder). (d) Each notice from the Borrower pursuant to this Section 2.25 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Facilities may be provided, subject to provide an Incremental Commitment the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that there is no existing Lender will have an obligation to approach any existing Lenders to provide any portion of any Incremental CommitmentFacility) or by any other Person eligible to be an assignee pursuant to Section 10.6(b), (x) the Administrative Agent, the Issuing Lender subject to any applicable consent requirements and the Swingline other limitations set forth therein (any such other lender being called an “Additional Lender”); provided that any Additional Lender shall have consented execute and deliver a Joinder Agreement. (such consent not to be unreasonably withheldi) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected effective under this Agreement pursuant to one or more Joinder Agreements an amendment (each, an “Incremental Joinder Agreement”) to this Agreement and, as appropriate, the other Loan Documents, executed and delivered by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender (who shall, upon the New Revolving Credit effectiveness thereof, become a Lender or New Term Lenderfor all purposes in connection with this Agreement), as applicableif any, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase. The Incremental Agreement may, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan IncreaseSection 2.25(c), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the Borrower Borrower, to effect the provisions of this Section 2.252.25 (including, in connection with any Increased Revolving Commitments, to reallocate Revolving Extensions of Credit on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) and for the avoidance occurrence of doubt, any extension of credit thereunder shall be subject to only the satisfaction of such conditions as the parties thereto shall agree and as set forth in this Section 2.25 shall supersede 2.25. The Borrower will use the proceeds of the Incremental Facilities for any provisions in Section 10.7 or 10.1 to the contrarypurpose not prohibited by this Agreement. (gii) The Loans and Upon the effectiveness of any Increased Revolving Commitments extended or established pursuant to this paragraph shall constitute Loans Section 2.25, each Lender with a Revolving 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 Increased Revolving Commitments under(each, an “Increasing Revolving Commitment Lender”), and each such Increasing Revolving Commitment Lender will automatically and without further act be deemed to have assumed a portion of such Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender with a Revolving Commitment of such Class (including each such Increasing Revolving Commitment Lender) will equal the percentage of the aggregate Revolving Commitments of such Class of all Lenders represented by such Lender’s Revolving Commitment of such Class. If, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall, on or prior to the effectiveness of such Increased Revolving Commitments, be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Increased Revolving Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 2.21. 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. (iii) Upon the effectiveness of any Additional/Replacement Revolving Commitments, then (A) the borrowing and repayment (except (x) payments of interest and fees at different rates in respect of any then-existing Revolving Commitments and such Additional/Replacement Revolving Commitments (and, in each case, related outstandings), (y) repayments required on the maturity date of any then-existing Revolving Commitments and (z) repayments made in connection with any permanent repayment and termination of Comm

Appears in 1 contract

Sources: Credit Agreement (Affinity Gaming)

Incremental Loans. The Borrower and one or more of the Lenders (a) At and/or any time other bank or from time to financial institution that thereby becomes a "Lender" hereunder, with the consent of the Agent (which consent shall not be unreasonably withheld)), may at any time after the Closing Effective Date agree that such Lender (or other bank or financial institution) shall become an Incremental Loan Lender by executing and delivering to the Agent an Incremental Loan Activation Notice specifying the respective Incremental Loan Commitment of such Incremental Lenders, the Incremental Loan Activation Date, the Borrower may by written notice period of availability of such Incremental Loan Commitment, the amortization schedule for such Incremental Loan to be made in respect of such Incremental Loan Commitment, and otherwise duly completed. Subject to the Administrative Agent elect terms and conditions set forth herein, each Incremental Loan Lender severally agrees to request (A) prior to the Revolving Termination Date, make one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior Incremental Loans to the Term Maturity Date, Borrower during the establishment of one or more new term loan commitments which may be period from and including the Incremental Loan Activation Date to but excluding the last day of the same tranche as relevant availability period for such existing Term Loans (a “Term Incremental Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is up to but not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to exceeding the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, Loan Lender's Incremental Loan Commitment. Nothing in this Agreement shall be allocated and the amounts of such allocations; provided that (w) construed to obligate any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Loan Commitment), (x) the Administrative Agent, the Issuing Lender . From and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditionsActivation Date, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n2.08(a) and hereof) may Convert Incremental Loans of one Type into Incremental Loans of another Type (as provided in Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline 2.08(a) hereof) or Continue Incremental Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment one Type as Incremental Loans of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate Type (as defined belowprovided in Section 2.08(a) hereof). Amounts repaid or prepaid in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall Incremental Loans may not be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loansreborrowed. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Journal Register Co)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental NotesTerm Loans, $100,000,000 plus (y) an additional amount of the “Incremental Commitments so long as in the case of this clause (yLoans ”), ; provided that (1) the Senior Secured First Lien total aggregate principal amount for all such Incremental Loan Commitments when combined with the aggregate outstanding principal amount of Additional Pari Passu Debt shall not (as of any date of incurrence thereof) exceed $250,000,000 or, if greater, an amount equal to the principal amount of additional Indebtedness that would cause the Consolidated Total Net Leverage Ratio as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 four (4) consecutive fiscal quarter period most recently ended prior to 1.0 the incurrence of such additional Indebtedness, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness (assuming any Incremental Revolving Credit Commitment is fully drawn but without netting the cash proceeds of such Indebtedness), not to exceed 2.50 to 1.00 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $100,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Collateral Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded but without netting the cash proceeds received in connection with any Incremental Loan Commitment) and (z) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) the proceeds of any Incremental Loans shall be used for working capital or general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (bF) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice to any Revolving Lender with respect to an increase in Incremental Term Loan (the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) terms of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche which shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental relevant Lender Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall):

Appears in 1 contract

Sources: Credit Agreement (Copart Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental NotesTerm Loans, $100,000,000 plus (y) an additional amount of the “Incremental Commitments so long as in the case of this clause (yLoans”), ; provided that (1) the Senior Secured First Lien total aggregate principal amount for all such Incremental Loan Commitments when combined with the aggregate outstanding principal amount of Additional Pari Passu Debt shall not (as of any date of incurrence thereof) exceed $250,000,000 or, if greater, an amount equal to the principal amount of additional Indebtedness that would cause the Consolidated Total Net Leverage Ratio as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 four (4) consecutive fiscal quarter period most recently ended prior to 1.0 the incurrence of such additional Indebtedness, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness (assuming any Incremental Revolving Credit Commitment is fully drawn but without netting the cash proceeds of such Indebtedness), not to exceed 3.25 to 1.00 and (2) the total aggregate amount for each Incremental Loan Commitment and the Incremental Loans made thereunder shall not be less than a minimum principal amount of $100,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Collateral Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded but without netting the cash proceeds received in connection with any Incremental Loan Commitment) and (z) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) the proceeds of any Incremental Loans shall be used for working capital or general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (bF) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y1) in the case of each notice Incremental Term Loan (the terms of which shall be set forth in the relevant Lender Joinder Agreement): (A) such Incremental Term Loan will mature and amortize in a manner reasonably acceptable to the Incremental Lenders making such Incremental Term Loan and the Borrower, but will not in any Revolving Lender event have a maturity date earlier than the maturity date with respect to an increase in any other Incremental Term Loan; (B) the Applicable Margin and pricing grid, if applicable, for such Incremental Term Loan shall be determined by the applicable Revolving Commitments, Incremental Lenders and the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to Borrower on the assignments contemplated by clause (b) of this Section 2.25.applicable Increased Amount Date; and (eC) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth hereinprovided above, all other terms and conditions applicable to any Incremental Term Loan, to the extent not identical materially consistent with the terms and conditions applicable to the any other Incremental Term Loans or Revolving Loans, as applicableLoan, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallBorrower;

Appears in 1 contract

Sources: Credit Agreement (Copart Inc)

Incremental Loans. (a) At any time or from time prior to time after the Closing Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new up to two (2) incremental revolving credit commitments (any such new commitmentsincremental revolving credit commitment, collectively with an “Incremental Loan Commitment”) to make incremental revolving credit loans (any Revolving Facility Increasesuch incremental revolving credit loans, the an New Revolving Credit CommitmentsIncremental Loan”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $40,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment shall not be less than $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent Agent, the Issuing Lenders and the Swingline Lender, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such any Incremental Commitments, Loan Commitment; (B) each Incremental Loan shall be a “Revolving Credit Loan” for all purposes hereof and shall be subject to the same terms and conditions as applicable; (2) the Incremental Commitments will share in Revolving Credit Loans and shall be guaranteed and secured with the Collateral other Extensions of Credit on a pari passu basis; ; (3C) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Commitments, Lenders providing such Credit Loans) in accordance with their revised Revolving Credit Commitment Percentages (and the Lenders (including the Incremental Lenders providing such Incremental Loans) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as applicable, if such reallocation were a repayment); (D) such Incremental Loan Commitments shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such applicable Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.25, and for 4.13); and (E) the avoidance of doubt, this Section 2.25 Borrower shall supersede deliver or cause to be delivered any provisions other documents reasonably requested by the Administrative Agent in Section 10.7 or 10.1 to the contraryconnection with any such transaction. (gb) On any Increased Amount Date on which any Incremental Loan Commitment becomes effective, each Incremental Lender with an Incremental Loan Commitment shall become a Lender hereunder with respect to such Incremental Loan Commitment. Thereafter it shall be entitled to the same voting rights as the existing Lenders under the Revolving Credit Facility and shall be included in any determination of the Required Lenders. The Loans and Commitments extended or established pursuant to Incremental Lenders will not constitute a separate voting class for any purposes under this paragraph shall constitute Loans and Commitments under, and shallAgreement.

Appears in 1 contract

Sources: Credit Agreement (Apogee Enterprises Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the Borrower may by written notice to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake an incremental term loan (any such incremental term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to an “Incremental Revolving Credit Commitment” and, together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each ) to make incremental revolving credit loans (any such increase, an “Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase” and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental NotesTerm Loan, $100,000,000 plus (y) an additional amount of the “Incremental Commitments so long as in the case of this clause (yLoans “), ; provided that (1) the Senior Secured First Lien Leverage Ratio total aggregate amount for all such Incremental Loan Commitments shall not (as of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 any date of incurrence thereof) exceed $50,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and Agent, to provide an Incremental Loan Commitment (B) the identity of each existing any such Person, an “Incremental Lender”). Any Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” any Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating that the Borrower will share be in compliance on a pro forma basis with the Collateral financial covenants set forth in Section 9.15 both before and after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (C) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (D) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; ; (3E) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”1) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, Term Loan will mature and any Incremental Commitments previously made pursuant to this Section 2.25, and amortize in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans a manner reasonably acceptable to the Administrative Agent, the Collateral Agent Incremental Lenders making such Incremental Term Loan and the Lenders (other Borrower, but will not in any event have a shorter average life to maturity than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject the remaining average life to the satisfaction maturity of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Initial Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make or a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Loan Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Federal Signal Corp /De/)

Incremental Loans. (a) At Subject to the terms and conditions of this Agreement and the Credit Agreement, each Incremental Lender agrees to make the 2023 Incremental Loans to the Borrower on the Incremental Effective Date in a principal amount not to exceed the amount set forth opposite such Incremental Lender’s name in Schedule 1 annexed hereto (the “2023 Incremental Loan Commitment”). Amounts repaid in respect of the 2023 Incremental Loans may not be reborrowed. The 2023 Incremental Loan Commitment will terminate in full upon the funding of the 2023 Incremental Loans on the Incremental Effective Date. (b) Notwithstanding any time provision to the contrary herein or from time in the Credit Agreement, (i) the 2023 Incremental Loans shall have identical terms as the existing Loans under the Credit Agreement (including, without limitation, with respect to time maturity date, mandatory prepayments, and voluntary prepayments) and shall otherwise be subject to the provisions, including any provisions restricting the rights, or regarding the obligations, of the Loan Parties or any provisions regarding the rights of the Lenders, under the Credit Agreement and the other Loan Documents, (ii) each reference to “Loan” in the Credit Agreement or the other Loan Documents shall be deemed to include the 2023 Incremental Loans hereunder and all other related terms will have correlative meanings mutatis mutandis, (iii) any Incremental Lender will be a Lender, (iv) on and after the Closing Incremental Effective Date, the Borrower may by written notice to 2023 Incremental Loans and the Administrative Agent elect to request (A) Loans existing immediately prior to the Revolving Termination Incremental Effective Date shall collectively constitute one tranche of Loans under the Credit Agreement, and (v) all principal, fees, premiums and interest with respect to the 2023 Incremental Loans (including prepayments) shall be paid ratably together with and on the same basis as the other Loans. (c) As of the Incremental Effective Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior after giving effect to the Term Maturity Date, the establishment of one or more new term loan commitments which may be incurrence of the same tranche as such existing Term 2023 Incremental Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increasehereunder, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit LoansAgreement is $140,016,442.84. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Subordinated Credit Agreement (F45 Training Holdings Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Date and prior to the Maturity Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, establishment of one or more increases in the amount of Revolving Credit Commitments (a any such increase, an Incremental Revolving Credit Commitment”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such Incremental Revolving Credit Commitments during the term of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 this Agreement shall not exceed $300,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Increase shall not be less than a minimum principal amount of $25,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Revolving Credit Increase shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent and (B) the identity Agent. The Borrower may invite any Lender, any Affiliate of each existing any Lender or and/or any Approved Fund, and/or any other Person that is reasonably satisfactory to the Administrative Agent, to provide an Assignee (each, a “New Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Revolving Credit Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit CommitmentsCommitment. Such Any Incremental Revolving Credit Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) all Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject the making of any Extensions of Credit pursuant thereto, (3) any Permitted Acquisition consummated in connection therewith and (4) any permanent repayment of Indebtedness in connection therewith; (B) the Administrative Agent shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the provisions of Sections 2.03(nAdministrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 9.10 based on the financial statements most recently delivered pursuant to Section 8.01(a) or 8.01(b), as applicable, both before and 2.04(gafter giving effect (on a Pro Forma Basis) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New (x) all Incremental Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the such Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New all such Incremental Revolving Credit Commitments after the associated being deemed to be fully funded on such Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Datefor such purpose), except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to Permitted Acquisition consummated in connection therewith and (z) any permanent repayment of Indebtedness in connection therewith; (C) each of the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included representations and warranties contained in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount Article VII shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be requiredtrue and correct in all material respects, except to the extent an increase any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in the interest rate floor in which case, such Term Facility would cause an increase in the interest rate then in effect thereunder, representation and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility warranty shall be increased true and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such increased amountearlier date); (viiD) the New Term Loans and/or New each Incremental Revolving Credit Loans will rank Commitment (and the Extensions of Credit made thereunder) shall constitute Obligations of the Borrower and shall be guaranteed with the other Extensions of Credit on a pari passu basis; (E) in right the case of payment with existing Term Loans and each Incremental Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shallIncrease:

Appears in 1 contract

Sources: Credit Agreement (Salesforce Com Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the The Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each Incremental Commitment shall be ) or the increase of the Revolving Commitments hereunder, in an aggregate principal amount that is for all such New Term Loan Commitments and increases of the Revolving Commitments not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything the Incremental Cap (subject to the contrary herein, the Incremental Commitments shall not exceed, Limited Condition Acquisition Proviso in connection with any Permitted Acquisition or permitted Investment that constitutes an acquisition (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) other than an additional amount of Incremental Commitments so long as in the case of this clause (yintercompany Investment), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental the New Term Loan Commitments or increase of the Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent and (B) or such shorter period as the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocationsAdministrative Agent may approve; provided that (wi) any Lender offered or approached to provide all or a portion of any New Term Loan Commitments or increase of the Incremental Revolving Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental New Term Loan Commitments if such consent or increase of the Administrative Agent, the Issuing Lender Revolving Commitments and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (yii) with respect to any New Term Commitments, any Affiliated Lender providing a Loan Commitments or increases to the Revolving Commitments established pursuant to this Section 2.25 will count towards the Ratio-Based Incremental Facility prior to reducing the maximum amount under the Cash-Capped Incremental Facilities (to the extent permitted by the pro forma calculation of the Consolidated Total Leverage Ratio required prior to the incurrence of such Ratio-Based Incremental Facility). Such New Term Commitment shall be subject to Loan Commitments or increase of the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that subject to the Limited Condition Acquisition Proviso, (1i) no Default the conditions set forth in Section 5.2 were satisfied or Event of Default shall exist waived on such Increased Amount Date before or after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, Loan Commitments and to the extent applicable, making of any Tranche of New Term Loans pursuant thereto or to such increase of the Administrative Agent Revolving Commitments and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded after giving effect to any transaction consummated in the Registerconnection therewith; (4ii) the Borrower shall be in pro forma compliance with the financial covenants covenant set forth in Section 7.1 (assuming a borrowing as of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing end of the Incremental Loans)most recently ended Test Period; and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case proceeds of a Term Loan Increase, any New Term Loans shall be on used for general corporate purposes of the same terms Borrower and pursuant to the same documentation as the Term Loans increased thereby its Subsidiaries (including Permitted Acquisitions and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicableInvestments permitted under Section 7.8); or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Term Loans shall be identical to share ratably in the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date Collateral and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments benefit ratably from the tranches constituting guarantees under the applicable Revolving Commitments prior to the Increased Amount DateGuarantee and Collateral Agreement; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis shall share ratably or less than pro rata basis (but not on a greater than pro rata basis) favorably in any voluntary or mandatory prepayments of the existing Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; Loans; (vi) the maturity date of New Term Loans thereof shall not be earlier than the Tranche B Term Maturity Date and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of the Tranche B Term Loans; (vii) all terms and documentation with regards respect to any New Term LoanLoans which differ from those with respect to the Tranche B Term Loans shall be reasonably satisfactory to the arranger of such Incremental Facility (except to the extent permitted by clause (vi) and, if with respect to New Term Loans under the Tranche B Term Facility, clause (x) of this Section, and the last sentence of this paragraph) (it being understood that, to the extent that any terms are added for the benefit of the Lenders of any Incremental Facility, no consent shall be required from the Administrative Agent or any other Lenders to the extent that such term is (1) favorable to all Lenders and also added for the benefit of both the Tranche A Term Facility and the Tranche B Term Facility, as applicable, or (2) only applicable interest rate relating to after the latest maturity of the Tranche A Term Facility and the Tranche B Term Facility), as applicable; (viii) such New Term Loans or New Term Loan exceeds the interest rate Commitments or increase of the initial Term Facility Revolving Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by more than 50 basis pointsthe Borrower, the applicable interest rate relating to arranger of such Term Incremental Facility and one or more New Lenders; (ix) the Borrower shall be adjusted deliver or cause to be equal delivered any customary legal opinions or other documents reasonably requested by the arranger of such Incremental Facility in connection with any such transaction, including any supplements or amendments to the applicable interest rate relating to Security Documents providing for such New Term Loan minus 50 basis pointsLoans to be secured thereby; provided, further, that in determining such applicable interest rates, (x) if the initial “spread” (for purposes of this Section 2.25, the “spread” with respect to any Loan shall be calculated as the sum of the Eurodollar Loan margin on the relevant Loan plus any original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount lieu of original issue discountdiscount (other than any arranging fees, underwriting fees and commitment fees) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year average life to maturityfor the applicable Facilities (e.g., 100 basis points in original issue discount or upfront fees equals 25 basis points of interest rate margin))) and (y) any amendments relating to the applicable margin on any initial New Term Facility that became effective subsequent Loans incurred before the 18-month anniversary of the First Amendment Effective Date exceeds the spread then in effect with respect to the Closing Date but prior Tranche B Term Loans by more than 0.50%, the Applicable Margin relating to the time of existing Tranche B Term Loans shall be adjusted so that the spread relating to such New Term Loan shall also be included in such calculationsLoans does not exceed the spread applicable to the existing Tranche B Term Loans by more than 0.50%; provided, further, provided that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes Loans include an interest rate floor greater than the interest rate floor applicable to such initial the Tranche B Term FacilityLoans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the applicable interest margin under Applicable Margin for the initial Tranche B Term Facility Loans shall be required, to the extent an increase in the interest rate floor in such for the Tranche B Term Facility Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate marginApplicable Margin) applicable to such the Tranche B Term Facility Loans shall be increased by such increased amount;, (xi) the Borrower may appoint any Person to arrange such Incremental Facilities and provide such arranger any titles with respect to such Incremental Facilities as it deems appropriate and (xii) the Administrative Agent shall not be required to execute, accept or acknowledge any incremental joinder documentation. Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from those of the Term Loans outstanding on the date on which such New Term Loans are made shall be designated as a separate tranche (a “Tranche”) of Term Loans for all purposes of this Agreement, except as the relevant Joinder Agreement otherwise provides. For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any New Term Loan shall be determined by the Borrower and the applicable lenders of New Term Loans (each, a “New Term Lender”) and shall be set forth in the applicable Joinder Agreement. Notwithstanding the foregoing, the conditions precedent to each such increase or New Term Facility shall be agreed to by the Lenders providing such increase or New Term Facility, as applicable, the arranger of such increase or New Term Facility, as applicable, and the Borrower; provided that in connection with the incurrence of any New Term Loans, if the proceeds of such New Term Loans are, substantially concurrently with the receipt thereof, to be used, in whole or in part, by the Borrower or any other Loan Party to finance, in whole or in part, a Permitted Acquisition, then (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Increase Effective Date shall be (x) customary “specified representations” and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Holdings or the Borrower (or any Affiliate of Holdings or the Borrower) has the right to terminate the obligations of Holdings, the Borrower or such Affiliate under such acquisition agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement and (B) no Event of Default under Sections 8.01(a), (f) or (g) would exist after giving effect to such incurrence. (viib) On any Increased Amount Date on which any New Term Loan Commitments or increase of the Revolving Commitments becomes effective, subject to the foregoing terms and conditions, each lender with a New Term Loan Commitment or an increase of the Revolving Commitments (each, a “New Lender”) shall become a Lender hereunder with respect to such New Term Loan Commitment or such increase of the Revolving Commitments, as the case may be. (c) The terms and provisions of the New Term Loans and/or New Revolving Credit Loans will rank pari passu Loan Commitments of any Tranche shall be, except as otherwise set forth in right the relevant Joinder Agreement, identical to those of payment with existing the applicable Term Loans and Revolving Credit Loans and the liens securing the for purposes of this Agreement, any New Term Loans and/or or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loan Commitments shall be deemed to be Term Loans. (f) . Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower arranger of such Incremental Facility, to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Wesco Aircraft Holdings, Inc)

Incremental Loans. (a) At any time or from time Prior to time after the Closing Datelast day of the Term, the Borrower may Borrowing Agent may, by written notice to Agent (who shall promptly notify the Administrative Agent elect to applicable Lenders of such request), request the establishment of: (Ai) prior to the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments Commitment (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit CommitmentsCommitment)) to make Revolving Advances (any such increase, (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a an Term Loan Incremental Revolving Credit Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New total aggregate initial principal amount (as of the date of incurrence thereof) of all such requested Incremental Revolving Credit Commitments and Incremental Revolving Credit Increases shall not exceed $30,000,000. 200,000,000. (ii) Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes Borrowers propose that such any Incremental Commitments Revolving Credit Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent and (Bor such earlier date as may be approved by Agent). (iii) the identity Borrowers may invite any Lender, any Affiliate of each existing any Lender or and/or any other Person (any of the foregoing that is an Assignee (eachnot then a Lender, a “New Lender”), to provide an Incremental Revolving Credit Commitment, subject to the consent of Agent and Issuer and Swing Loan Lender, in each case, such consent not to be unreasonably withheld, to the extent such consent would be required for an assignment by such Person (any such Person, an “Incremental Lender”), and subject to the requirements of Section 16.3. (iv) Any proposed Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Revolving Credit Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans Revolving Credit Commitment or Commitments to such Person, any portion thereof. (yv) with respect to New Term Commitments, any Affiliated Lender providing a New Term Any Incremental Revolving Credit Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that, each of the following conditions has been satisfied or waived as of such Increased Amount Date: (1A) There shall exist no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to any Incremental Revolving Credit Commitment and the making of any Incremental Revolving Credit Increase pursuant thereto; (B) The amount of Incremental Revolving Credit Increase requested pursuant to this Section 2.24 shall be at least $50,000,000; (C) each of the representations and warranties of Loan Parties contained in Article V of this Agreement shall be true in all material respects on and as of the date of such additional Loan or Letter of Credit with the same effect as though such representations and warranties had been made on and as of such date (except representations and warranties which expressly relate solely to an earlier date or time, which representations and warranties shall be true and correct in all material respects on and as of the specific dates or times referred to therein) and Loan Parties shall have performed and complied with all covenants and conditions hereof; (D) the proceeds of any Incremental Revolving Credit Increase shall be used for any purpose not prohibited under this Agreement; (E) each Incremental Revolving Credit Commitment (and the Incremental Revolving Credit Increases made thereunder) shall constitute Obligations of Borrowers; (F) each New Lender shall execute a lender joinder and assumption agreement in substantially the form of Exhibit 2.24 hereto (a “Lender Joinder Agreement”) pursuant to which such New Lender shall join and become a party to this Agreement and the Other Documents (as applicable) with a Revolving Commitment Amount as set forth in such joinder and assumption agreement; (G) (x) such Incremental CommitmentsRevolving Credit Increase shall mature on the last day of the Term, shall bear interest and be entitled to fees (other than upfront fees), in each case at the applicable Contract Rate, and shall be subject to the same terms and conditions as applicablethe Revolving Advances; (2y) the Incremental outstanding Revolving Advances and the pro rata share of Swing Loans and the Maximum Undrawn Amount of all outstanding Letters of Credit will be reallocated by Agent on the applicable Increased Amount Date among Lenders holding Revolving Commitments will share in the Collateral on a pari passu basis; (3) including the Incremental CommitmentsLenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Commitment Percentages (and Lenders holding Revolving Commitments (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and Borrowers shall pay any and all costs in connection with such reallocation as if such reallocation were a repayment); and (z) except as provided above, as applicableall of the other terms and conditions applicable to such Incremental Revolving Credit Increase shall, except to the extent otherwise provided in this Section 2.24, be identical to the terms and conditions applicable to the Revolving Advances; (H) any Incremental Revolving Credit Commitment shall otherwise be on terms and pursuant to documentation reasonably satisfactory to Agent and Borrowers; (I) such Incremental Revolving Credit Commitments shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”x) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming case of a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such an Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment provided by an existing Lender, an amendment to Schedule 1.1 hereof reflecting the increase of such tranche, and (ii) each New Lender’s existing Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any a an Incremental Revolving Credit Commitment provided by a New Lender, one or more Lender with respect to an increase in Joinder Agreements executed and delivered by ▇▇▇▇▇▇▇▇▇, Agent and the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed amendment to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Schedule 1.1 or Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Other Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.24); (J) Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Revolving Credit Increase and/or Incremental Revolving Credit Commitment), as may be reasonably requested by Agent in connection with any such transaction; (K) Agent shall have received, prior to the consummation of such Incremental Revolving Credit Increase and/or Incremental Revolving Credit Commitment, such “onboarding” and tax and administrative forms that are customarily provided for new lenders in syndicated facilities; and (L) Swing Loan Lender and Issuer shall have consent rights (not to be unreasonably withheld) with respect to such Incremental Lender, if such consent would be required for an assignment of Revolving Advances or Revolving Commitments, as applicable, to such Incremental Lender. (b) [reserved]. (c) The Incremental Lenders shall be included in any determination of the Required Lenders, as applicable, and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (d) [reserved]. (e) On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall become a Lender hereunder with respect to such Incremental Revolving Credit Commitment. (f) On any Increased Amount Date, Borrowers shall pay all cost and expenses incurred by Agent in connection with the negotiations regarding, and for the avoidance preparation, negotiation, execution and delivery of doubtall agreements and instruments executed and delivered by any of Agent, this Section 2.25 shall supersede any provisions Borrowers and/or Incremental Lenders in Section 10.7 or 10.1 to the contraryconnection with, such Incremental Revolving Credit Increases. (g) The Loans On any Increased Amount Date, the following dollar floors shall be automatically and Commitments extended or established pursuant proportionately increased (such that the percentage yielded by dividing such existing dollar floor by the aggregate Revolving Commitments, in each case as in effect prior to this paragraph shall constitute Loans the effectiveness of such Incremental Revolving Credit Commitments, is the same as the percentage yielded by dividing such increased dollar floor by the aggregate Revolving Commitments, in each case immediately following the effectiveness of such Incremental Revolving Credit Commitments): (A) the definition of “Cash Dominion Trigger Event”; (B) the definition of “Cash Dominion Trigger Satisfaction Event”; (C) the definition of “Covenant Trigger Event”; (D) the definition of “Covenant Trigger Satisfaction Event”; (E)[reserved]; (F) the definition of “Letter of Credit Sublimit”; (G) the definition of “Maximum Swing Loan Advance Amount”; (H) the definition of “Monthly Borrowing Base Trigger Event”; (I) the definition of “Monthly Borrowing Base Trigger Satisfaction Event”; (J) clauses (a)(i), (b)(i)(A) and Commitments under, (b)(ii)(A) of the definition of “Payment Conditions”; (K) the definition of “Weekly Borrowing Base Trigger Event”; (L) the definition of “Weekly Borrowing Base Trigger Satisfaction Event”; (M) Section 2.1(c); (N) Section 4.6 and shall(O) Section 4.7.

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Worthington Steel, Inc.)

Incremental Loans. (a) At Borrowers may at any time or and from time to time after the Closing Date, the Borrower may Date by written notice from the Borrower Representative to the Administrative Agent elect (whereupon the Administrative Agent shall make such notice available to each of the Lenders) request (A) prior to the Revolving Termination Date, one or more increases in additional new revolving loan tranches (an “Incremental Loan”) increasing the aggregate amount of Revolving Commitments the commitments hereunder (each such increase, a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Commitment Increase”) in an aggregate amount not to exceed $250,000,000 from any existing Lender or, subject to compliance by the Swiss Borrower with the Non-Bank Rules, an Additional Incremental Lender (which Additional Incremental Lender shall become a “Lender” hereunder subject to the ​ ​ - 42 - prior consent of the Administrative Agent and Borrowers, such consent not to be unreasonably withheld, conditioned or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”delayed). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such written notice shall specify specify: (Ai) the date on which Borrowers propose that the Commitment Increase shall be effective (each, an the Increased Amount Loan Increase Effective Date”) on which the Borrower proposes that such Incremental Commitments shall be effective), which shall be a date not less than ten (10) Banking Days after the date on which such notice is delivered to the Administrative Agent Agent, (ii) the amount of such proposed Commitment Increase (which shall not exceed an aggregate of $250,000,000 for all Commitment Increases), and (Biii) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit including each Additional Incremental Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any Borrowers propose each portion of such Commitment Increase and related Incremental Commitments, Loan be allocated and the amounts amount of each such allocations; provided that (w) allocation. No existing Lender will have any Lender approached obligation to provide all accept or a make any portion of the any Incremental Commitments may elect Loan or declineto make any Loan associated with any Commitment Increase. Each Lender, in its sole discretion, to provide an Incremental may either grant or deny any increase in its respective commitment. ​ (b) A Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender Increase shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent become effective as of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Loan Increase Effective Date; provided that each of the following conditions precedent is satisfied: ​ (1i) no Default or Event of Default shall exist on such Increased Amount have occurred and be continuing or would result from any borrowing to be made as of the Loan Increase Effective Date after giving effect or otherwise with respect to such Incremental Commitments, as applicablethe Commitment Increase; (2ii) the Incremental Commitments will share representations and warranties made by Borrowers herein shall be true and correct in all material respects (or in all respects to the Collateral extent otherwise qualified by materiality or Material Adverse Effect) on and as of the Loan Increase Effective Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a pari passu basisspecific earlier date (in which event such representations and warranties shall have been true and correct in all material respects (or in all respects to the extent otherwise qualified by materiality or Material Adverse Effect) on and as of such earlier date); (3iii) the Incremental Commitments, as applicable, Borrower Representative shall be effected pursuant have delivered to the Administrative Agent a certificate of a Responsible Officer of the U.S. Borrower certifying clauses (i) and (ii); and ​ (iv) the Commitment Increase has been accepted by one or more Joinder Agreements Lenders or Additional Incremental Lenders. (eachc) The terms and conditions of any Incremental Loan made pursuant to a Commitment Increase shall be as follows: (i) on and after each Loan Increase Effective Date, an “each Lender (including Additional Incremental Joinder Agreement”Lender(s)) executed and delivered by the Borrowershall be obligated, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicableof its commitment, in accordance with the requirements set forth in this Agreement to provide Loans to Borrowers under each Incremental Loan subject to Borrowers’ compliance with the terms and conditions of this ​ ​ Agreement applicable to all Loans, including with respect to borrowing procedures and conditions precedent to all Loans; ​ (ii) each Commitment Increase shall be in a minimum amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof; and ​ (iii) each Commitment Increase shall be documented pursuant to an incremental joinder agreement (the “Incremental Joinder”) reasonably satisfactory to the Administrative Agent, executed by ▇▇▇▇▇▇▇▇▇, the Administrative Agent and the Issuing each Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to making such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this AgreementLoan. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.5. In addition, and for unless otherwise specifically provided herein, all references in this Agreement or any other Credit Document to Loans shall be deemed to include a reference to Incremental Loans that are Loans made pursuant to this Agreement. ​ (d) Prior to each respective Loan Increase Effective Date, the avoidance of doubt, this Section 2.25 Administrative Agent shall supersede any provisions receive from each Additional Incremental Lender an administrative questionnaire in Section 10.7 or 10.1 the form reasonably satisfactory to the contrary.Administrative Agent or, in the case of an existing Lender, an update to such administrative questionnaire and the Administrative Agent shall adjust each Lender’s Pro Rata Share to account for each such Lender and/or Additional Incremental Lender and each Commitment Increase and related Incremental Loan. ​ (ge) The Incremental Loans and Commitments extended or Commitment Increases established pursuant to this paragraph Section 2.5 shall constitute Loans and Individual Commitments for all purposes under, and shall be entitled to all the rights, benefits and remedies afforded by this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably, on a pari passu basis, from the guarantees of the Guarantors. ​ (f) Each Lender providing an Incremental Loan or a Commitment Increase on the Loan Increase Effective Date shall make a Loan, the proceeds of which will be used to prepay the Loans of the other Lenders immediately prior to such Loan Increase Effective Date, so that, after giving effect thereto, the Loans outstanding are held by the Lenders pro rata based on their Individual Commitments after giving effect to such Loan Increase Effective Date. If there is a new borrowing of Loans on such Loan Increase Effective Date, the Lenders after giving effect to such Loan Increase Effective Date shall make such Loans in accordance with Article 3. ​ ​

Appears in 1 contract

Sources: Revolving Facility Credit Agreement (Royal Gold Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Fourth Amendment Effective Date, the Borrower applicable Borrowers may by written notice from the Borrowing Agent to the Administrative Agent elect to request the establishment of: (Ai) prior one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to the Revolving Termination Datemake one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit Commitments”)Commitment” and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Loan Commitments”). Each Incremental Commitment shall be in an aggregate ) to increase the maximum principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinrevolving credit loans permitted hereunder (any such increase, the an “Incremental Commitments shall not exceedRevolving Credit Increase” and, (x) together with the aggregate principal amount of any Incremental NotesTerm Loans, $100,000,000 plus (y) an additional amount of the “Incremental Commitments so long as in the case of this clause (yLoans”), ; provided that (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such Incremental Loan Commitments shall not (as of the Borrower any date of incurrence thereof) exceed Twenty Million and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 00/100 Dollars ($20,000,000.00) and (2) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of Five Million and 00/100 Dollars ($5,000,000) or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes applicable Borrowers propose that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrowers shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”); provided that the Administrative Agent, the Swing Loan Lender and each Issuing Lender shall consent to each Incremental Lender (Bincluding any existing Lender) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes providing any portion of such an Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Loan Commitment. Any Incremental Loan Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Potential Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsLoan Commitment, as applicable; (2) the making of any Incremental Commitments will share in the Collateral on a pari passu basis; Loans pursuant thereto and (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements any Permitted Acquisition consummated in connection therewith; (each, an “Incremental Joinder Agreement”B) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender Lenders shall have received from the Borrowing Agent on behalf of the applicable Borrowers a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Swingline LenderAdministrative Agent, or another form of incremental amendment, each of which shall be recorded that the Loan Parties are in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan Sections 9.2.13 [Minimum Consolidated Fixed Charge Coverage Ratio] and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans9. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Mastech Digital, Inc.)

Incremental Loans. (a) At any time or and from time to time after the Closing earlier of (i) the date that is three months after the Funding Date and (ii) the completion of the syndication of the Facilities (as determined by the Joint Bookrunning Managers) and, with respect to Incremental Revolving Commitments, prior to the Revolving Maturity Date, and, with respect to Incremental Term Loans, prior to the Tranche B Maturity Date, in each case subject to the terms and conditions set forth herein, the Borrower may may, by written notice to the Administrative Agent elect (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to (x) increase the existing Revolving Commitments (“Incremental Revolving Commitments” and Loans made pursuant to such Incremental Revolving Commitments, “Incremental Revolving Loans”) and/or (y) add one or more additional tranches of term loans (the “Incremental Term Loans” and, together with Incremental Revolving Loans, “Incremental Loans”), provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (A) prior no Default has occurred and is continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Section 6.12 and 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower, (C) the Incremental Loans shall constitute “Senior Indebtedness” and “Designated Senior Indebtedness” under and as defined in the Convertible Notes Documents and (D) the Borrower shall have delivered a certificate of a Financial Officer to the Revolving Termination Date, one or more increases effect set forth in the amount of Revolving Commitments clauses (a “Revolving Facility Increase”A), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), and (C) prior above, together with all calculations relevant thereto, including reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Term Maturity DateAdministrative Agent the financial statements and certificate of a Financial Officer required to be delivered by Section 5.01(a) or (b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period). Notwithstanding anything to the contrary herein, the establishment aggregate principal amount of one or the Incremental Loans shall not exceed $400,000,000, of which not more new term loan commitments which than $100,000,000 may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate Incremental Revolving Loans. Each tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” Incremental Loans shall be in an integral multiple of $1,000,000 and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein100,000,000, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicableLoans, and to the extent applicable$25,000,000, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Incremental Revolving Lender with respect to an increase in the applicable Revolving CommitmentsLoans, the respective interests in provided that such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments amount may be less than $100,000,000 or the New Revolving Credit Loans and New Revolving Credit Commitments$25,000,000, as the case may be, if such amount represents all the remaining availability under the aggregate principal amount of any tranche Incremental Term Loans or Incremental Revolving Loans, respectively, set forth above. (b) The Incremental Term Loans (i) shall rank pari passu in right of payment in respect of the Collateral and with the Obligations in respect of the Revolving Commitments and the Tranche B Term Loans, (ii) for purposes of prepayments, shall be treated substantially the same as agreed between (and in any event no more favorably than) the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Tranche B Term Loans and New (iii) other than amortization, pricing or maturity date, shall have the same terms as the Tranche B Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicableprovided that (A) if the Applicable Rate (which, for such purposes only, shall be reasonably satisfactory deemed to Administrative Agent. In any event: (i) the Weighted Average Life include all upfront or similar fees or original issue discount payable to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Term Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared relating to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Tranche B Term Loans) relating to the Tranche B Term Loans immediately prior to the effectiveness of the initial Term applicable Incremental Facility Amendment by more than 50 basis points0.25%, the applicable interest rate Applicable Rate relating to such the Tranche B Term Facility Loans shall be adjusted to be equal to the applicable interest rate relating Applicable Rate (which, for such purposes only, shall be deemed to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) include all upfront or similar fees or original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Incremental Term Loans) relating to such Incremental Term Loans minus 0.25%, (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (yB) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Incremental Term Loan shall also be included in such calculations; providednot have a final maturity date earlier than the Tranche B Maturity Date, further, that if the reserve adjusted Eurodollar Rate and (as defined belowC) in respect of such New any Incremental Term Loan includes an interest rate floor greater shall not have a weighted average life that is shorter than the interest rate floor applicable to such initial weighted average life of the then-remaining Tranche B Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount;Loans. (viic) the New Term The Incremental Revolving Loans and/or New and Incremental Revolving Credit Loans will Commitments (i) shall rank pari passu in right of payment in respect of the Collateral and with existing the Obligations in respect of the Revolving Commitments and the Tranche B Term Loans, (ii) for purposes of prepayments, shall be treated the same as the Revolving Loans and (iii) shall have the same terms as the Revolving Credit Loans (including without limitation with respect to pricing and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loansmaturity date). (fd) Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Incremental Joinder Loans. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Loans or Incremental Revolving Commitments shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent. No Lender shall be obligated to provide any Incremental Loans or Incremental Revolving Commitment, unless it so agrees. Commitments in respect of any Incremental Loans shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.25(including to provide for voting provisions applicable to the Additional Lenders comparable to the provisions of clause (B) of the second proviso of Section 9.02(b)). The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and for the avoidance Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of doubt, this Section 2.25 shall supersede any provisions each of the conditions set forth in Section 10.7 or 10.1 4.03 (it being understood that all references to “the date of such Borrowing” in Section 4.03 shall be deemed to refer to the contraryIncremental Facility Closing Date). The Administrative Agent shall receive not less than 10 Business Days advance notice (or shorter, if agreed by the Administrative Agent) prior to any proposed Incremental Facility Closing Date. The proceeds of any Incremental Extensions of Credit will be used only for general corporate purposes. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Nasdaq Stock Market Inc)

Incremental Loans. (a) At any time or from time to time after the Closing ClosingThird Amendment Effective Date and prior to the Latest Maturity Date, the Borrower may may, by written notice to the Administrative Agent elect (which shall promptly deliver a copy to each of the Lenders), request the addition to this Agreement of (Ai) prior to an incremental revolving credit facility in the form of an increase in the Revolving Termination Date, one or more increases in Facility effected pursuant to either (x) additional commitments under any existing Class of the amount of Revolving Commitments (a “any such increase in such Revolving Facility Increase”Commitments (including in respect of any existing Other Revolving Commitment of any Other Revolving Commitment Series), an “Incremental Revolving Commitment”) or (By) the establishment addition of one or more a new tranche of revolving credit commitments with pricing, maturity and/or other terms different from then existing Revolving Commitments as provided in this Section 2.21 (any such new additional tranche of revolving commitments, collectively with any “Other Incremental Revolving Facility Increase, the “New Revolving Credit Commitments”), (Cii) prior Incremental Securitization Refinancing Facilities (as defined below) in the form of a new tranche of term loans or an increase in the Revolving Facility pursuant to the Term Maturity Dateincurrence of Incremental Revolving Credit Commitments or Other Incremental Revolving Commitments, the establishment of or (iii) one or more new tranches of term loan commitments which may be loans (together with any new tranche of term loans incurred in the same tranche as form of an Incremental Securitization Refinancing Facility, collectively “Incremental Refinancing Term Loans”) constituting Refinancing Indebtedness in respect of Permitted First Priority Debt (an “Incremental Senior Debt Refinancing Facility”), or any combination thereof (such existing Incremental Revolving Commitments, Other Incremental Revolving Commitments, Incremental Refinancing Term Loans (a “Term Loan Increase”) in the form of either an Incremental Securitization Refinancing Facility or a separate tranche of new term loans (collectively with any Term Loan Increasean Incremental Senior Debt Refinancing Facility, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitmentscollectively, the “Incremental CommitmentsFacilities”); provided, however, that upon the effectiveness of any such Incremental Facility, no Default shall exist and the Borrower shall, if a Financial Covenant Effectiveness Period is then occurring, be in compliance with Section 6.12 (calculated, in the case of clause (y), on a pro forma basis to give effect to (1) any borrowing under the Incremental Facility (with any Revolving Commitments thereunder being deemed to be fully drawn), (2) any substantially simultaneous repayments of existing Revolving Loans and FILO Loans, (3) in the case of any Incremental Securitization Refinancing Facility, any substantially simultaneous repayments or repurchases of Third Party Interests or Indebtedness incurred under Section 6.01(a)(xvi)(A) (and the related repurchases of Securitization Assets and cessation of future purchases of Securitization Assets)), and (4) in the case of any Incremental Senior Debt Refinancing Facility, any substantially simultaneous repayments or repurchases of Permitted First Priority Debt and provided, further, that no Split-Priority Term Loan Debt may be incurred as an Incremental Facility hereunder. Each The Incremental Commitment Facilities shall (i) be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with excluding the aggregate principal amount of any Incremental Notes, Securitization Refinancing Facilities) not in excess of $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y)300,000,000, (1ii) rank pari passu in right of payment and of security with the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 other Loans, and (2iii) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that if such Incremental Commitments Facility is an increase in the Revolving Facility pursuant to any Incremental Revolving Commitment, such Incremental Facility shall be effectivemade on the same terms (including, which shall be a date after the date on which such notice is delivered to the Administrative Agent without limitation, interest, payment and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitmentmaturity terms), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth conditions as the applicable existing Class of Revolving Commitments to which such Incremental Revolving Commitments relate (it being understood that customary arrangement or commitment fees payable to Arrangers or one or more Lenders or Additional Lenders participating in Section 10.6(c) such increase, as they would otherwise the case may be, may be subject different from those paid with respect to the existing Revolving Commitments of the existing Revolving Lenders on or prior to the ClosingThird Amendment Effective Date or with respect to any purchase by or assignment to such Affiliated other Lender of Term Loans in connection with any other Incremental Facility), and (zB) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to if such Incremental Commitments, as applicable; (2) the Incremental Commitments will share Facility is an increase in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected Revolving Facility pursuant to one Other Incremental Revolving Commitments or more Joinder Agreements if such Incremental Facility is in the form of Incremental Refinancing Term Loans, (each, an “x) such Incremental Joinder Agreement”) executed and delivered Facilities have such pricing as may be agreed by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, Borrower and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice any such Incremental Refinancing Term Loans, shall amortize in a manner, and be subject to mandatory prepayments (if any) on terms, acceptable to the Administrative Agent, and mature no earlier than the Latest Maturity date of the FILO Facility and any Revolving Lender with respect to an increase other then existing Incremental Refinancing Term Loans and (z) otherwise be treated hereunder no more favorably than, in the applicable case of Other Incremental Revolving Commitments, the respective interests Revolving Loans and Revolving Commitments (other than any Revolving Loan under Other Revolving Commitments of any Revolving Commitment Series), and in such the case of Incremental Refinancing Term Loans, the outstanding FILO Loans and the FILO Facility and any other Incremental Refinancing Term Loans; provided, that the terms and provisions applicable to any Other Incremental Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Commitments or Incremental Refinancing Term Loans and New Term Commitments may provide for additional or different financial or other covenants applicable only during periods after the New Revolving Credit Loans and New Revolving Credit Commitments, as Latest Maturity Date that is in effect on the case may be, date of any tranche effectiveness of such Incremental Facility. At no time shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of Total ABL Outstandings at such New Term Loans; time exceed (ii) (A) the final maturity date of any tranche ABL Borrowing Base Amount in effect at such time, and the proceeds of the New Term Loans Incremental Facilities shall be no earlier than used solely for the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as purposes set forth in this Section 2.25(e)(vi); 5.10, provided that, notwithstanding anything to that the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments proceeds of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date Incremental Securitization Refinancing Facilities shall be made on a pro rata basis with all other Revolving Commitments on used solely for the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as purposes specified in the applicable penultimate sentence of this Section 2.21 and the proceeds of any Incremental Joinder Agreement; (vi) Senior Debt Refinancing Facility shall be used solely to repay Permitted First Priority Debt and interest and other amounts relating thereto that can be financed with regards to any New Term Loan, if the applicable interest rate Refinancing Indebtedness relating to such New Term Loan exceeds Permitted First Priority Debt. Such notice shall set forth the interest rate requested amount and Class of Incremental Facilities, and shall offer each Lender the opportunity to offer a commitment (the “Incremental Commitment”) to provide a portion of the initial Term Incremental Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time giving written notice of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable offered commitment to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower within a time period (the “Offer Period”) to be specified in the Borrower’s notice; provided, however, that no existing Lender will be obligated to subscribe for any portion of such commitments. In the event that, at the expiration of the Offer Period, Lenders shall have provided Commitments in an aggregate principal amount greater than the total amount of the Incremental Facility initially requested by the Borrower, the commitments of the Lenders to the Incremental Facility shall be allocated ratably among the Lenders as agreed to among the Borrower and the Administrative Agent. In the event that, at the expiration of the Offer Period, Lenders shall have provided commitments in an aggregate principal amount less than the total amount of the Incremental Facility initially requested by the Borrower, the Borrower may request that Incremental Facility commitments be made in a lesser amount equal to such commitments and/or shall have the right to arrange for one or more Additional Lenders to extend commitments to provide a portion of the Incremental Facility in an aggregate principal amount equal to the unsubscribed amount of the initial request; provided that the Additional Lenders shall be offered the opportunity to provide the Incremental Facility only on terms previously offered to the existing Lenders pursuant to the immediately preceding sentence. Commitments in respect of Incremental Facilities will become Commitments under this Agreement pursuant to an amendment to this Agreement (such an amendment, an “Incremental Facility Amendment”) executed by each of the Borrower, each Subsidiary Loan Party, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The effectiveness of any Incremental Facility Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 of this Agreement as in effect on the provisions ClosingThird Amendment Effective Date, such Incremental Facility (assuming that it is fully drawn) being permitted under each indenture or other agreement governing any Material Indebtedness (giving pro forma effect to all prepayments, repayments, defeasances and discharges of Indebtedness to be effected with the proceeds of such Loans as certified in writing by a Responsible Officer of the Borrower) and such other conditions as are specified in the applicable Incremental Facility Amendment. For purposes of this Section 2.252.21, “Incremental Securitization Refinancing Facility” means any Incremental Facility to the extent that the proceeds of the Loans incurred thereunder are used by the Borrower or a Subsidiary Loan Party on the date such Loans are made to repay or repurchase Third Party Interests or Indebtedness incurred pursuant to Section 6.01(a)(xvi)(A) (or repurchase Securitization Assets that have been sold, conveyed or otherwise transferred pursuant to any Securitization), provided that, upon such repayment or repurchase, (x) no Third Party Interests or Indebtedness incurred pursuant to Section 6.01(a)(xvi)(A) remains outstanding, (y) all commitments of the Borrower and for the Subsidiaries to sell, convey or otherwise transfer Securitization Assets pursuant to any Securitization are terminated and (z) all Securitization Assets that remain outstanding and were previously sold, conveyed or otherwise transferred pursuant to any Securitization are repurchased by the Borrower or a Subsidiary Loan Party. For the avoidance of doubt, this Section 2.25 Securitization Refinancing Indebtedness shall supersede any provisions in Section 10.7 or 10.1 to the contrarynot constitute an Incremental Facility. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Rite Aid Corp)

Incremental Loans. (a) At any time or from time to time after After giving effect to, and by virtue of, Amendment No. 1, the Closing Borrower and the Tranche B Revolving Lenders have established the Tranche B Revolving Commitments on the terms set forth in Amendment No. 1 utilizing $41,470,588.23 of the $75,000,000 under clause (x) of the definition of Maximum Incremental Facilities Amount. After the Amendment No. 1 Effective Date, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, one or more increases in the amount of any-then existing Tranche of Revolving Commitments (each increase in Commitment pursuant to this sentence, a “Supplemental Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan IncreaseCommitment”) or a separate tranche of new term loans (collectively with any Term Loan Increasehereunder, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is for all such Supplemental Revolving Commitments not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to of, at the contrary hereintime the respective Supplemental Revolving Commitments become effective, the Maximum Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities Amount after giving effect to such Incremental Commitments Amendment No. 1 and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New establishment of the Tranche B Revolving Credit Commitments exceed $30,000,000Commitments. Each such notice relating to Supplemental Revolving Commitments shall specify (Ai) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental the Supplemental Revolving Commitments shall be effective, which shall be a date not less than 10 Business Days (or such shorter period as the Administrative Agent may agree) after the date on which such notice is delivered to the Administrative Agent and (Bii) if applicable, the identity Tranche (or Tranches) of each existing Lender or other Person that is an Assignee Revolving Commitments to be so increased (eachand, a “New if more than one Tranche of Revolving Credit Lender” or “New Term Lender,” as applicable) Commitments will be increased, the amount of the aggregate Supplemental Revolving Commitment to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of to each such allocationsTranche); provided provided, that (wx) any Lender offered or approached to provide all or a portion of the Incremental any Supplemental Revolving Commitments may elect or decline, in its sole discretion, to provide such Supplemental Revolving Commitments, and (y) any Person that the Borrower proposes to become a New Lender, if such Person is not then a Lender, must be an Incremental Commitment (it being understood that there is no obligation Eligible Assignee and must be reasonably acceptable to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, and to the extent its consent would be required to assign Loans to any such Eligible Assignee, each Issuing Lender and the Swingline Lender shall have consented Lender. (such consent not to be unreasonably withheldb) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Such Tranche B Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such the Amendment No. 1 Effective Date pursuant to the terms of Amendment No. 1. Such Supplemental Revolving Commitments shall become effective as of the applicable Increased Amount Date; provided that provided, that: (1i) no Default or Event of Default shall exist on such Increased Amount Date immediately after giving effect to such Incremental CommitmentsSupplemental Revolving Commitments and the making of any New Loans pursuant thereto and any transaction consummated in connection therewith subject to the Permitted Acquisition Provisions (as defined below) |US-DOCS\115543490.9|| and the Limited Condition Acquisition Provision, as applicable; in connection with any acquisition or investment being made with the proceeds thereof; (2ii) the Incremental proceeds of any Supplemental Revolving Commitments will share shall be used, at the discretion of the Borrower, for any purpose not prohibited by this Agreement; (iii) the Supplemental Revolving Commitments shall benefit, ratably with the other Commitments in the same Tranche, from the guarantees under the Guarantee and Collateral Agreement and shall only be guaranteed by the Guarantors; (iv) the Supplemental Revolving Commitments shall be secured by the Liens on the Collateral on a pari passu basis; basis with the Liens securing all other Obligations and the Obligations with respect to the Supplemental Revolving Commitments shall have the same payment priority as the other Obligations in the same Tranche; (3v) the Incremental Commitmentsconditions set forth in Section 2.34 shall be satisfied, if applicable; (vi) (A) the maturity date of such Supplemental Revolving Commitment shall be the Revolving Termination Date of the Tranche being so increased, (B) such Supplemental Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to such Revolving Termination Date and (C) such Supplemental Revolving Commitment shall be on the same terms as the Tranche being so increased (other than with respect to upfront fees) and pursuant to the same documentation applicable to such Tranche; (vii) such Supplemental Revolving Commitments shall be effected in accordance with Section 2.25(e); and (viii) to the extent reasonably requested by the Administrative Agent, the Borrower shall deliver or cause to be delivered (A) customary legal opinions with respect to the due authorization, execution and delivery by the Borrower and each other Loan Party to be party thereto and the enforceability of the applicable Increase Supplement or Lender Joinder Agreement, as applicable, shall the non-conflict of the execution, delivery of and performance of payment obligations under such documentation with this Agreement and with the organizational documents of the Loan Parties and the effectiveness of the Guarantee and Collateral Agreement to create a valid security interest, and the effectiveness of specified other Security Documents to perfect such security interests, in specified Collateral to secure the Obligations, including the Supplemental Revolving Commitments and the extensions of credit thereunder, (B) certified copies of the resolutions or other applicable corporate action of each applicable Loan Party approving its entry into such documents and the transactions contemplated thereby and (C) customary reaffirmation agreements and/or such amendments, supplements or modifications to the Security Documents as may be effected pursuant reasonably necessary or advisable to one ensure that each New Lender is provided with the benefits of the applicable Loan Documents and each then existing Secured Party continues to be provided with the benefit of the applicable Loan Documents. |US-DOCS\115543490.9|| Notwithstanding anything to the contrary above, in connection with the incurrence of any Supplemental Revolving Commitment, if the proceeds of such Supplemental Revolving Commitment are, substantially concurrently with the receipt thereof, to be used, in whole or more Joinder Agreements (eachin part, an “Incremental Joinder Agreement”) executed and delivered by the BorrowerBorrower or any Restricted Subsidiary to finance, the New Revolving Credit Lender in whole or New Term Lenderin part, as applicablea Permitted Acquisition, and then to the extent applicableso required by the applicable New Lenders, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Increased Amount Date shall be (x) the Specified Representations (conformed as necessary for such Permitted Acquisition) and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that Holdings or the Borrower (or any Affiliate of Holdings or the Borrower) has the right to terminate the obligations of Holdings, the Administrative Agent Borrower or such Affiliate under such acquisition agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement and the Issuing Lender and the Swingline Lender, (B) there need not be a condition to borrowing that there be no Default or another form Event of incremental amendment, each of which Default other than there shall be recorded in the Register; no Event of Default under Sections 8.1(a) or (4f) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and incurrence (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender“Permitted Acquisition Provisions”). (bc) On any Increased Amount Date date on which New Revolving Credit Commitments are effected through a Revolving Facility Increaseany Incremental Commitment becomes effective, subject to the satisfaction of the foregoing terms and conditions, each lender with an Incremental Commitment (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenderseach, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term LoanLender”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term LoansCommitment. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) For purposes of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan IncreaseAgreement, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; providedRevolving Loans or Revolving Commitments, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) respectively. Each Incremental Joinder Agreement Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Borrower and the Borrower Administrative Agent, to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (ge) The Loans Supplemental Revolving Commitments related to existing Tranche(s) of Revolving Commitments at such time shall become commitments under this Agreement pursuant to a supplement specifying the Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto as Exhibit L-1 (the “Increase Supplement”) and by each New Lender (if not already a Lender) substantially in the form attached hereto as Exhibit L-2 (the “Lender Joinder Agreement”), as the case may be, or, in each case, such other form as may be reasonably acceptable to the Administrative Agent and the Borrower, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement or Increase Supplement, as applicable, each New Lender shall be a Lender for all intents and purposes of this Agreement and the commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments extended or established of such increased Tranche. (f) Upon the effectiveness of each Supplemental Revolving Commitment pursuant to this paragraph shall constitute Loans Section 2.25, (i) each Lender under the applicable Tranche immediately prior to such increase will automatically and Commitments underwithout further act be deemed to have assigned to each New |US-DOCS\115543490.9|| Lender providing a portion of such Supplemental Revolving Commitment, and shalleach such New Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche such that, after giving effect to such Supplemental Revolving Commitment and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche held by each Lender (including each such New Lender) will equal such Lender’s Tranche Revolving Percentage thereof and (ii) if, on the date of such Supplemental Revolving Commitment, there are any Revolving Loans outstanding under such Tranche, such Revolving Loans shall on or prior to the effectiveness of such Supplemental Revolving Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Supplemental Revolving Commitment), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.11.

Appears in 1 contract

Sources: Asset Based Revolving Credit Agreement (Revlon Inc /De/)

Incremental Loans. (a) At any time or from time Prior to time after the Closing Datelast day of the Term, the Borrower may Borrowing Agent may, by written notice to the Administrative Agent elect (who shall promptly notify the applicable Lenders of such request), request the establishment of: (i) one or more incremental term loan commitments (any such incremental term loan commitment, an "Incremental Term Loan Commitment") to request (A) prior make one or more term loans, including a borrowing of an additional term loan the principal amount of which will be added to the Revolving Termination Dateoutstanding principal amount of the existing tranche of Incremental Term Loans (any such additional term loan, an "Incremental Term Loan"); or (ii) one or more increases in the amount of Revolving Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments Commitment (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the “New an "Incremental Revolving Credit Commitments”)Commitment" and, (C) prior to together with the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Incremental Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the "Incremental Loan Commitments”). Each ") to make Revolving Advances (any such increase, an "Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinRevolving Credit Increase" and, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstandingTerm Loans, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such "Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25Loans"); provided that in no event the total aggregate initial principal amount (as of the date of incurrence thereof) of such requested Incremental Loan Commitments and Incremental Loans shall the New Revolving Credit Commitments not exceed Three Hundred Million and 00/100 Dollars ($30,000,000. 300,000,000). (iii) Each such notice shall specify (A) the date (each, an "Increased Amount Date") on which the Borrower proposes Borrowers propose that such any Incremental Commitments Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Agent (or such earlier date as may be approved by the Administrative Agent). (iv) The Borrowers may invite any Lender, any Affiliate of any Lender and/or any other Person, to provide an Incremental Loan Commitment, subject to the consent of the Agent and the Issuer and Swing Loan Lender, in each case, such consent not to be unreasonably withheld, to the extent such consent would be required for an assignment by such Person (Bany such Person, an "Incremental Lender"), and subject to the requirements of Section 16.3. (v) the identity of each existing Any proposed Incremental Lender offered or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Loan Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans Loan Commitment or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender)portion thereof. (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Revolving Credit, Term Loan, Delayed Draw Term Loan and Security Agreement (Ati Inc)

Incremental Loans. (a) At The Borrower may at any time or from time to time after the Closing Date, the Borrower may by written notice delivered to the Administrative Agent elect (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (Ai) prior to the Revolving Termination Date, one or more additional Classes of term loans and/or additional commitments of any existing Class of Term Loans (the commitments in respect of any such new Class or increase, “Incremental Term Commitments” and loans made thereunder, “Incremental Term Loans”) and/or (ii) one or more additional Classes of Revolving Commitments (the commitments of any such new Class, “Additional/Replacement Revolving Commitments”) and/or increases in the amount of Revolving Commitments of any existing Class (a any such increased commitments, Increased Revolving Facility IncreaseCommitments” and, together with any Incremental Term Commitment and Additional/Replacement Revolving Commitments, collectively, “Incremental Facilities”; and the loans under such Increased Revolving Commitments and Additional/Replacement Revolving Commitments, “Incremental Revolving Loans” and, together with any Incremental Term Loans, “Incremental Loans”); provided that: (i) there shall be no more than three (3) separate Classes of Revolving Commitments under the Revolving Facility; (ii) no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments (subject, in the case of any Incremental Term Commitments are being used to finance a Limited Condition Acquisition, to Section 1.6(c)); (iii) subject to Section 1.6(c), the conditions of Section 5.2(a) shall be satisfied (it being understood that all references to “such date” or similar language in such Section 5.2(a) shall be deemed to refer to the effective date of such Incremental Agreement); provided that, if the proceeds of any Incremental Term Commitments are being used to finance a Limited Condition Acquisition, (A) the reference in Section 5.2(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute “Specified Representations” (the definition of which shall be agreed by the Borrower and the lenders providing such Indebtedness) and the representations and warranties in the relevant acquisition agreement the breach of which would permit the buyer to terminate its obligations thereunder or decline to consummate such Limited Condition Acquisition and (B) the establishment reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Limited Condition Acquisition; (iv) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.1, determined on a Pro Forma Basis as of one the last day of the most recently ended Test Period as if any Incremental Term Loans or more new Incremental Revolving Loans, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, and, in each case, assuming the full utilization of any unfunded revolving credit commitments provided simultaneously thereunder and any subsequent funding of the term debt borrowed or issued thereunder; and (any such new commitments, collectively with any Revolving Facility Increasev) to the extent reasonably requested by the Administrative Agent, the “New Revolving Credit Commitments”), (C) prior Administrative Agent shall have received customary legal opinions addressed to the Term Maturity DateAdministrative Agent, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” Collateral Agent and the New Term CommitmentsLenders, collectively board resolutions and officers’ certificates consistent with those delivered on the Closing Date (other than changes to such legal opinion resulting from a Change in Law, change in fact or change to counsel’s form of opinion) reasonably satisfactory to the Administrative Agent and, within 60 days (or such longer period as the Administrative Agent may agree to) after the closing date of such Incremental Facilities, completion by the Borrower and the other Credit Parties of such other actions relating to any New Revolving Credit CommitmentsMaterial Real Estate that is, or is required to be, subject to a Mortgage (or the Mortgages entered into in connection therewith) as the Administrative Agent may reasonably request in connection with such Incremental Commitments”). Facilities. (b) Each Incremental Commitment Facility shall be in an aggregate principal amount that is not less than $5,000,000 individually 10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth below) (and in integral multiples minimum increments of $1,000,000 5,000,000 in excess of that amount. Notwithstanding anything to the contrary hereinthereof), the Incremental Commitments shall not exceed, (x) together with and the aggregate principal amount of all Incremental Facilities shall not exceed the Incremental Limit. (i) Any Incremental Term Loans (A)(1) shall be pari passu with any Incremental Notesthen-existing Class of Term Loans in right of payment and in right of security, $100,000,000 plus (2) shall not be the obligation of, or subject to any guarantee by any Person who is not also a Loan Party (or who becomes a Loan Party concurrently with the effectiveness thereof), and (3) shall not be secured by (x) a Lien on any Property in which the Collateral Agent does not have a Lien (or in which the Collateral Agent does not obtain a Lien concurrently with the effectiveness thereof) or (y) a perfected Lien on any Property in which the Collateral Agent does not have a perfected Lien (or in which the Collateral Agent does not obtain a perfected Lien concurrently with the effectiveness thereof); (B) shall not mature earlier than the maturity with respect to the Initial Term Loans; (C) shall not have a shorter Weighted Average Life to Maturity than the Initial Term Loans; (D) shall have a maturity date (subject to clause (B)), an additional amount amortization schedule (subject to clause (C)), and interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts and original issue discounts as determined by the Borrower and the lenders providing the Incremental Term Loans; provided that, in the event that the Effective Yield for any such Incremental Term Loans is greater than the Effective Yield for the Initial Term Loans by more than 0.50%, then the Applicable Margins for the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for the Incremental Term Loans minus 0.50%; (E) shall, to the extent any then-existing Term Loans require ratable prepayment, share ratably with such existing Term Loans, subject to the right of the Borrower to direct the application of voluntary prepayments and unless the Borrower and the lenders providing the Incremental Commitments Term Loans elect to share in such prepayments on a less than pro rata basis; and (F) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that (x) except with respect to matters contemplated by clauses (B), (C), (D) and (E) above or terms applicable only after the Initial Term Maturity Date, any differences shall not be materially more restrictive (when taken as a whole) than the terms and conditions of the Loan Documents (when taken as a whole), as reasonably determined by the Borrower, unless such differences are consistent with then-current market terms for the applicable type of Indebtedness and (y) the documentation governing any Incremental Term Loans may include any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Facility. (i) The Increased Revolving Commitments shall be treated the same as the Initial Revolving Commitments in effect on the Closing Date (including with respect to maturity date thereof) and shall be considered to be part of the Initial Revolving Facility in effect on the Closing Date (it being understood that, if required to obtain Increased Revolving Commitments, the interest rate margins, rate floors and undrawn commitment fees on the Initial Revolving Commitments as in effect on the Closing Date may be increased and additional upfront or similar fees may be payable to the lenders providing the Increased Revolving Commitments) and shall be effected as an increase in the case Initial Revolving Commitments. (ii) Any Additional/Replacement Revolving Commitments (A)(1) shall be pari passu with any then-existing Class of this clause Revolving Commitments in right of payment and in right of security, (2) shall not be the obligation of, or subject to any guarantee by any Person who is not also a Loan Party (or who becomes a Loan Party concurrently with the effectiveness thereof), and (3) shall not be secured by (x) a Lien on any Property in which the Collateral Agent does not have a Lien (or in which the Collateral Agent obtains a Lien concurrently with the effectiveness thereof) or (y) a perfected Lien on any Property in which the Collateral Agent does not have a perfected Lien (or in which a Lien in favor of the Collateral Agent is perfected concurrently with the effectiveness thereof); (B) shall not mature earlier than, and shall require no scheduled amortization prior to, the Revolving Termination Date applicable to the Revolving Facility on the Closing Date and shall require no mandatory commitment reduction prior to the Revolving Termination Date applicable to the Revolving Facility on the Closing Date; (C) shall have interest rates (including through fixed interest rates), interest margins, rate floors, upfront fees, undrawn commitment fees, funding discounts, original issue discounts, and premiums (1including prepayment premiums) the Senior Secured First Lien Leverage Ratio of as determined by the Borrower and its Restricted Subsidiaries would the lenders of providing such Additional/Replacement Revolving Commitments; (D) may include provisions relating to letters of credit issued thereunder, which issuances shall be no greater than 3.75 to 1.0 and on terms substantially similar (2) if there are any unsecured Incremental Notes outstandingexcept for the overall size of such subfacilities, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, fronting fees payable in each case, as connection therewith and the identity of the end letter of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effectivecredit issuer, which shall be a date after determined by the date on Borrower, the lenders of such commitments and the applicable letter of credit issuers, which such notice is delivered shall be specified in the applicable Incremental Agreement) to the terms relating to Letters of Credit with respect to the Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (BE) may otherwise have terms and conditions different from those of the identity of each existing Lender or other Person that is an Assignee (each, a “New Initial Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocationsFacility; provided that (wx) except with respect to matters contemplated by clauses (B), (C) and (D) above or terms applicable only after the Revolving Termination Date applicable to the Initial Revolving Facility, any Lender approached to provide all or differences shall not be materially more restrictive (when taken as a portion whole) than the terms and conditions of the Incremental Loan Documents (when taken as a whole), as reasonably determined by the Borrower, unless such differences shall be consistent with then-current market terms for the applicable type of Indebtedness and (y) the documentation governing any Additional/Replacement Revolving Commitments may elect or declineinclude any Previously Absent Financial Maintenance Covenant so long as the Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such Previously Absent Financial Maintenance Covenant for the benefit of each Facility; provided, further, however, that if the applicable Previously Absent Financial Maintenance Covenant is a “springing” financial maintenance covenant applicable only to revolving Indebtedness, the Previously Absent Financial Maintenance Covenant shall be automatically included in its sole discretionthis agreement only for the benefit of each Revolving Facility (and not for the benefit of any Facility in respect of Term Loans hereunder). (d) Each notice from the Borrower pursuant to this Section 2.25 shall be given in writing and shall set forth the requested amount and proposed terms of the relevant Incremental Facility. Incremental Facilities may be provided, subject to provide an Incremental Commitment the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that there is no existing Lender will have an obligation to approach any existing Lenders to provide any portion of any Incremental Commitment), (xFacility) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not or by any other Person eligible to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected assignee pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase10.6(b), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche any applicable consent requirements and the New Term Loans of other limitations set forth therein (any such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, other lender being called an “Incremental LoanAdditional Lender) in an amount equal to its New Revolving Credit Commitment of such tranche, ); provided that any Additional Lender shall execute and (ii) each New Revolving Credit Lender of such tranche shall become deliver a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25Joinder Agreement. (e) The terms, provisions and documentation of the New Term Loans and New Term (i) Incremental Commitments or the New Revolving Credit Loans and New Revolving Credit Commitmentsshall become effective under this Agreement pursuant to an amendment (an “Incremental Agreement”) to this Agreement and, as appropriate, the case may beother Loan Documents, of any tranche shall be as agreed between executed by the Borrower Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender (who shall, upon the effectiveness thereof, become a Lender for all purposes in connection with this Agreement), if any, and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan IncreaseThe Incremental Agreement may, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) belowSection 2.25(c)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the Borrower Borrower, to effect the provisions of this Section 2.252.25 (including, in connection with any Increased Revolving Commitments, to reallocate Revolving Extensions of Credit on a pro rata basis among the relevant Revolving Lenders). The effectiveness of any Incremental Agreement shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) and for the avoidance occurrence of doubt, any extension of credit thereunder shall be subject to only the satisfaction of such conditions as the parties thereto shall agree and as set forth in this Section 2.25 shall supersede 2.25. The Borrower will use the proceeds of the Incremental Facilities for any provisions in Section 10.7 or 10.1 to the contrarypurpose not prohibited by this Agreement. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Affinity Gaming)

Incremental Loans. (a) At any time or from time to time after the Closing DateThe Borrower may, the Borrower may by written notice to the Administrative Agent elect from time to time, request (A) prior Incremental Loan Commitments in an amount not to exceed the Revolving Termination Date, Incremental Loan Amount from one or more increases in Incremental Lenders, all of which must be Eligible Assignees. Such notice shall set forth (i) the amount of Revolving the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a “Revolving Facility Increase”minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loan Amount), (Bii) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith; provided that the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is delivered an Affiliate of a Lender or a Related Fund). The Borrower and each Incremental Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and (B) such other documentation as the identity Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Incremental Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated . The terms and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion provisions of the Incremental Commitments may elect Loans shall be identical to those of the Loans except as otherwise set forth herein or decline, in its sole discretion, to provide an the Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) Loan Assumption Agreement. Without the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such prior written consent of the Administrative Agent, (i) the Issuing Lender and Swingline Lender would final maturity date of any Other Loans shall be required under Section 10.6 for an assignment no earlier than the Maturity Date, (ii) the average life to maturity of the Other Loans or Commitments shall be no shorter than the remaining average life to maturity of the Loans, (iii) if the initial yield on such Other Loans (as reasonably determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans (taking into account any interest rate floors with respect to such Person, Other Loans) and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life to maturity of such Other Loans and (B) four) exceeds the Applicable Margin then in effect for Eurodollar Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans and (iv) the other terms and documentation in respect of such Other Loans, to the extent not consistent with respect the Term Facility, shall be reasonably satisfactory to New Term Commitmentsthe Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Affiliated Lender providing Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Incremental Loans and Other Loans shall have the same guarantees as, and be secured on a New Term pari passu basis with, the Loans. (c) Notwithstanding the foregoing, no Incremental Loan Commitment shall be subject to become effective under this Section 2.22 unless (i) on the same restrictions date of such effectiveness, (x) the representations and warranties set forth in Section 10.6(cArticle III and in each other Loan Document shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans on and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (1or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date and (y) at the time of and immediately after the giving effect to the Borrowing of Incremental Loans, no Default or Event of Default shall exist have occurred and be continuing, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Borrower’s Total Secured Leverage Ratio shall not exceed 2.50:1.00 on such Increased Amount Date a pro forma basis after giving effect to such Incremental CommitmentsLoan Commitment, as applicable; (2) the incurrence of the Incremental Commitments will share Loans thereunder the use of proceeds thereof and the Administrative Agent shall have received a certificate to that effect showing such calculations in the Collateral on reasonable detail dated such date and executed by a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by Responsible Officer of the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, (iii) all fees and expenses owing to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing Lenders in respect of such increase shall have been paid, (iv) except as otherwise specified in the applicable Incremental Loans Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01 of the Existing Credit Agreement and (v) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages on the Real Estate Collateral Properties as security for the Obligations, as determined by the Administrative Agent in its reasonable discretion, (x) the applicable Loan Party to any Mortgages shall have entered into, and delivered to the Administrative Agent, at the Collateral direction and in the sole discretion of the Administrative Agent a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent, (y) the Borrower shall have caused to be delivered to the Administrative Agent for the benefit of the Lenders an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of such Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances that may then or thereafter take priority over the Lien of such Mortgages (other than any Defaulting Lender). Permitted Encumbrances) and (bz) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders Borrower shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lendershave delivered, at the principal amount thereofrequest of the Administrative Agent, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition Administrative Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of such New Revolving Commitments to Mortgages as security for the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term LoansObligations. (d) The Each of the parties hereto hereby agrees that the Administrative Agent shall notify Lenders promptly upon receipt of may, in consultation with the Borrower’s notice , take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Increased Amount Date and in respect thereof (x) Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurodollar Borrowing on a pro rata basis. Any conversion of Eurodollar Loans to ABR Loans required by the tranche of New Revolving Credit Commitments preceding sentence shall be subject to Section 2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, other economic consequences thereof shall be as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase set forth in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth hereinIncremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not identical to the Term Loans or Revolving Other Loans, as applicable, shall the scheduled amortization payments under Section 2.11(a)(i) required to be reasonably satisfactory to Administrative Agent. In any event: (i) made after the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence making of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Incremental Loans shall be no earlier than ratably increased by the original Term Maturity Date aggregate principal amount of such Incremental Loans and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans further increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the for all Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect necessary to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of avoid any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified reduction in the applicable Incremental Joinder Agreement; (vi) with regards amortization payments to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and were entitled before such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loansrecalculation. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Amendment Agreement (Supervalu Inc)

Incremental Loans. (a) At any time or during the Revolving Commitment Period the Borrower may request from time to time after from one or more existing Lenders or from other Eligible Assignees reasonably acceptable to the Closing DateAdministrative Agent, the Issuing Bank, the Swingline Lender and the Borrower (but subject to the conditions set forth in clause (b) below) that the Total Revolving Commitments be increased by an aggregate amount not to exceed the Available Revolving Increase Amount (each such increase, an “Increase”); provided that the Borrower may by written notice not request an Increase on more than three occasions during the Revolving Commitment Period. No Lender shall be obligated to increase its Revolving Commitments in connection with a proposed Increase. The Administrative Agent shall invite each Lender to provide a portion of the Increase ratably in accordance with its Revolving Percentage of each requested Increase (it being agreed that no Lender shall be obligated to provide an Increase and that any Lender may elect to participate in such Increase in an amount that is less than its Revolving Percentage of such requested Increase or more than its Revolving Percentage of such requested Increase if other Lenders have elected not to participate in any applicable requested Increase in accordance with their Revolving Percentage) and to the extent, 10 Business Days after receipt of invitation, sufficient Lenders do not agree to provide the full amount of such Increase, then the Administrative Agent elect may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to request (A) prior to become a Lender in connection with the Revolving Termination Date, one or more increases in the amount of Revolving Commitments (a “Revolving Facility proposed Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment Any Increase shall be in an aggregate principal amount that of at least $5,000,000 (or, if the Available Revolving Increase Amount is not less than $5,000,000 individually 5,000,000, such remaining Available Revolving Increase Amount) and in integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of that amount. Notwithstanding anything to the contrary hereindoubt, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower it is understood and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided agreed that in no event shall the New aggregate amount of the Increases to the Revolving Credit Commitments exceed $30,000,000the Available Revolving Increase Amount during the term of the Agreement. Each such notice shall specify (A) the date (each, request for an “Increased Amount Date”) on which Increase delivered by the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent shall set forth the amount and proposed terms of the Increase. (Bb) Each of the identity following shall be conditions precedent to any Increase of each existing Lender or other Person that is an Assignee the Revolving Commitments in connection therewith: (eachi) any Increase shall be on the same terms (including the interest rate, a “New Revolving Credit Lender” or “New Term Lender,” and maturity date), as applicable) , as, and pursuant to whom documentation applicable to, the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocationsRevolving Facility then in effect; provided that any such Increase may provide for terms (wincluding interest rate) any Lender approached more favorable to provide all or a portion of the Incremental Commitments may elect or declinesuch Increase lenders, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach if any existing Lenders Revolving Loans at the time of such Increase are also provided the benefit of such more favorable terms (and the consent of any existing Revolving Lender shall not be required to provide implement such terms); provided, further, that any Incremental Commitment), fees shall be agreed between the Borrower and the lenders providing such Increase; (xii) the Borrower shall have delivered a written request for such Increase at least 10 Business Days prior to the requested establishment of such Increase (or such later date as may be reasonably approved by the Administrative Agent), which request shall set forth the amount and proposed terms of the Increase; sf-5589619 (iii) each lender agreeing to such Increase, the Issuing Lender Borrower and the Swingline Lender Administrative Agent shall have consented signed an Increase Joinder (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such any Increase Joinder may, with the consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to such Incremental Commitments, as applicable; (2) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating lenders agreeing to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other LendersIncrease, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriateappropriate to effectuate the provisions of this Section 2.28 (including the preceding clause (ii))) and the Borrower shall have executed any Notes requested by any Lender in connection with the making of the Increase. Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, an Increase Joinder reasonably satisfactory to the Administrative Agent, and the amendments to this Agreement effected thereby, shall not require the consent of any Lender other than the Lender(s) agreeing to establish such Increase; (iv) immediately after giving pro forma effect to such Increase and the use of proceeds thereof, each of the conditions precedent in Section 4.2(a) are satisfied; (v) immediately after giving pro forma effect to such Increase and the reasonable opinion use of proceeds thereof, no Default or Event of Default shall have occurred and be continuing at the time of such Increase, the Borrower shall be in compliance with the financial covenant set forth in Section 6.1(a) hereof, the Borrower shall be in compliance with the financial covenant set forth in Section 6.1(b) hereof (after giving effect to the Covenant Adjustment Amount) as of the end of the most recently ended quarter for which financial statements are required to be delivered prior to such Increase, and the Borrower shall have delivered to the Administrative Agent a Compliance Certificate evidencing compliance with the requirements of this clause (v); (vi) in connection with such Increase, the Borrower shall pay to the Administrative Agent, for the benefit of the Administrative Agent or the Increase lenders, as applicable, all fees that the Borrower has agreed to pay in connection with such Increase (including pursuant to the Fee Letter); and (vii) upon each Increase in accordance with this Section 2.28, all outstanding Loans, participations hereunder in Letters of Credit and participations hereunder in Swingline Loans held by each Lender shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Revolving Percentages, pursuant to procedures reasonably determined by the Administrative Agent in consultation with the Borrower; provided that, with respect to any Increase incurred for the primary purpose of financing a Limited Condition Acquisition (“Acquisition-Related Incremental Commitments”), clauses (iv) and (v) of this sentence shall be deemed to have been satisfied so long as (A) as of the date of effectiveness of the acquisition agreement related to such Limited Condition Acquisition, no Default or Event of Default is in existence or would result from entry into such agreement, (B) as of the date of effectiveness of such Increase, no Event of Default under clause (a) or (f) of Section 7.1 is in existence immediately before or immediately after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (C) the representations and warranties set forth in Section 3 shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the acquisition agreement related to such Limited Condition Acquisition, and (D) as of the date of the initial borrowing pursuant to such Acquisition-Related Incremental Commitment, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Borrower to effect the provisions of this Section 2.25Borrower) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and for immediately after giving effect to, the avoidance incurrence of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrarysuch Acquisition-Related Incremental Commitment. (gc) Upon the effectiveness of any Increase, (i) all references in this Agreement and any other Loan Document to the Revolving Loans shall be deemed, unless the context otherwise requires, to include such Increase advanced pursuant to this Section 2.28 and any amendments effected through the Increase Joinder and (ii) all references in this Agreement and any other Loan Document to the Revolving Commitment shall be deemed, unless the context otherwise requires, to include the commitment to advance an amount equal to such Increase pursuant to this Section 2.28. sf-5589619 The Revolving Loans and Revolving Commitments extended or established pursuant to this paragraph Section 2.28 shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. The Borrower shall take any actions reasonably required by Administrative Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Revolving Commitments.

Appears in 1 contract

Sources: Credit Agreement (Sprout Social, Inc.)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, establishment of one or more increases in the amount of Revolving Credit Commitments (a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitmentsincrease, collectively with any Revolving Facility Increase, the an New Incremental Revolving Credit CommitmentsCommitment”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Loan”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 total aggregate amount for all such Incremental Revolving Credit Commitments shall not exceed $125,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Commitment (and the Incremental Loan made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Revolving Credit Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and (B) the identity of each existing Lender or other Person that is Agent, to provide an Assignee (each, a “New Incremental Revolving Credit Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the any Incremental Commitments Revolving Credit Commitment may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such (1) any Incremental CommitmentsRevolving Credit Commitment, as applicable; (2) the making of any Incremental Commitments Loan pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that (1) the Borrower will share be in compliance on a pro forma basis with the Collateral Financial Covenants both before and after giving effect to (1) any Incremental Revolving Credit Commitment, (2) the making of any Incremental Loan pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions); (E) each Incremental Revolving Credit Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender).; (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (yF) in the case of each notice to any Revolving Incremental Loan (the terms of which shall be set forth the relevant Lender with respect to an increase in Joinder Agreement): (x) such Incremental Loan shall mature on the Maturity Date, shall bear interest at the rate applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New shall be subject to the same terms and conditions as the Revolving Credit Commitments, as Loans; (y) the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New outstanding Revolving Credit Loans and New Revolving Credit Commitments, Commitment Percentages of Swingline Loans and except as otherwise set forth herein, to L/C Obligations will be reallocated by the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans Agent on the date of incurrence of such New Term Loans; applicable Increased Amount Date among the Lenders (ii) (A) including the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Incremental Lenders providing such Incremental Commitments or Loan) in accordance with their revised Commitment Percentages (and the Lenders (including the Incremental Loans;Lenders providing such Incremental Loan) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment); and (ivz) except as provided above, all other material terms of the New Revolving Credit Commitments other terms and New Revolving Credit Loans shall conditions applicable to such Incremental Loan shall, except to the extent otherwise provided in this Section 5.13, be identical to the terms and conditions applicable to the Revolving Commitments, on the Increased Amount Date, Credit Facility (other than the Maturity Date and as set forth in this Section 2.25(e)(viupfront fees); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contrary. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Afc Enterprises Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Datetime, the Borrower may by written notice to the Administrative Agent elect to request (Ai) prior to the Revolving Termination Dateone or more incremental term loans (each, an “Incremental Term Loan”) and/or (ii) one or more increases in the amount of Revolving Commitments (each, a “Revolving Facility Credit Increase”)” and, (B) together with the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Incremental Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit CommitmentsLoans, the “Incremental CommitmentsIncreases”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (xi) together with the aggregate principal amount of any all Incremental NotesIncreases shall not exceed the Incremental Facilities Limit, (ii) the aggregate principal amount for each Incremental Increase shall not be less than $100,000,000 plus (y) an additional 20,000,000 or, if less, the remaining amount of the Incremental Commitments so long as in Facilities Limit, and (iii) the case Borrower shall be permitted to request no more than five (5) Incremental Increases during the term of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000Agreement. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such any Incremental Commitments Increase shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period agreed to by the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any other Person reasonably satisfactory to the Administrative Agent (to be added as a Lender pursuant to a joinder agreement in form and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) substance reasonably satisfactory to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Administrative Agent), to provide an Incremental Increase. Any proposed Lender offered or approached to provide all or a portion of the any Incremental Commitments Increase may elect or decline, in its sole discretion, to provide such Incremental Increase. (b) The Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of each Incremental Increase. The Administrative Agent shall promptly notify the Borrower and the applicable Lenders of the final allocation of such Incremental Increase and the Increase Effective Date. Each Incremental Increase shall become effective on the applicable Increase Effective Date, which in the case of an Incremental Commitment (it being understood that there is no obligation Term Loan incurred solely to approach any existing Lenders to provide any Incremental Commitment)finance a substantially concurrent Limited Condition Transaction, (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date1.12; provided that that: (1i) no Default or Event of Default shall exist on such Increased Amount Increase Effective Date before or after giving effect to such Incremental CommitmentsIncrease or the making of initial Loans pursuant thereto; (ii) the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section 8.1, based on the financial statements most recently delivered pursuant to Section 7.3(a) or 7.3(b), as applicable; , both before and after giving effect (2on a pro forma basis) to (A) such Incremental Increase (with any commitment pursuant to such Incremental Increase being deemed to be fully funded) and (B) any transaction permitted hereunder consummated in connection therewith; (iii) each of the representations and warranties contained in Article VI shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increase Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (iv) each Incremental Commitments Increase shall constitute Obligations of the Borrower and will share in be secured by the Collateral on a pari passu basis; ; (3v) in the case of each Incremental Term Loan (the terms of which shall be set forth in the relevant Incremental Amendment): (A) the maturity of any such Incremental CommitmentsTerm Loan shall not be earlier than the Maturity Date; 202564162_8 (B) the upfront fees, as Applicable Margin pricing grid and any other pricing terms, if applicable, amortization and mandatory prepayments for any Incremental Term Loan shall be determined by the applicable incremental Lenders and the Borrower on the applicable Increase Effective Date; and (C) except as provided above, all other terms and conditions applicable to any Incremental Term Loan shall be reasonably satisfactory to the Administrative Agent and the Borrower; and (vi) in the case of each Revolving Credit Increase (the terms of which shall be set forth in the relevant Incremental Amendment): (A) on the applicable Increase Effective Date, the outstanding Revolving Credit Loans and Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent among the Lenders (including any new Lenders) in accordance with their revised Commitment Percentages and the Lenders (including any new Lenders) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 4.9 in connection with such reallocation as if such reallocation were a repayment; and (B) each Revolving Credit Increase shall be on the same terms and conditions, including maturity, Applicable Margin and commitment fees, applicable to the Revolving Credit Facility; provided that any upfront fees payable by the Borrower to the Lenders under any Revolving Credit Increase may differ from those payable under the then existing Commitments. (c) Each Incremental Increase shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) amendment to this Agreement executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the applicable increasing Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.7) (each, and for the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contraryan “Incremental Amendment”). (gd) The Loans Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of the Borrower authorizing such Incremental Increase) reasonably requested by Administrative Agent in connection with any such transaction. (e) The proceeds of any Incremental Increase may be used by the Borrower for working capital and Commitments extended or established pursuant to other general corporate purposes, including the financing of Permitted Acquisitions and other investments and any other use not prohibited by this paragraph shall constitute Loans and Commitments under, and shallAgreement.

Appears in 1 contract

Sources: Credit Agreement (MGP Ingredients Inc)

Incremental Loans. (a) At The BorrowerBorrowers may at any time or and from time to time after the Closing Date, the Borrower may Date by written notice from the Borrower Representative to the Administrative Agent elect (whereupon the Administrative Agent shall make such notice available to each of the Lenders) request (A) prior to the Revolving Termination Date, one or more increases in additional new revolving loan tranches (an “Incremental Loan”) increasing the aggregate amount of Revolving Commitments the commitments hereunder (each such increase, a “Revolving Facility Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Commitment Increase”) or in an aggregate amount not to exceed $250,000,000 from any existing Lender or, subject to compliance by the Swiss Borrower with the Non-Bank Rules, an Additional Incremental Lender (which Additional Incremental Lender shall become a separate tranche “Lender” hereunder subject to the prior consent of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” Administrative Agent and the New Term CommitmentsBorrowerBorrowers, collectively with any New Revolving Credit Commitmentssuch consent not to be unreasonably withheld, the “Incremental Commitments”conditioned or delayed). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such written notice shall specify specify: (Ai) the date (each, an “Increased Amount Date”) on which the Borrower proposes proposesBorrowers propose that such Incremental Commitments the Commitment Increase shall be effectiveeffective (the “Loan Increase Effective Date”), which shall be a date not less than ten (10) Banking Days after the date on which such notice is delivered to the Administrative Agent Agent, (ii) the amount of such proposed Commitment Increase (which shall not exceed an aggregate of $250,000,000 for all Commitment Increases), and (Biii) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit including each Additional Incremental Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any proposesBorrowers propose each portion of such Commitment Increase and related Incremental Commitments, Loan be allocated and the amounts amount of each such allocations; provided that (w) allocation. No existing Lender will have any Lender approached obligation to provide all accept or a make any portion of the any Incremental Commitments may elect Loan or declineto make any Loan associated with any Commitment Increase. Each Lender, in its sole discretion, to provide an Incremental may either grant or deny any increase in its respective commitment. A Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender Increase shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent become effective as of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Loan Increase Effective Date; provided that (1) each of the following conditions precedent is satisfied: no Default or Event of Default shall exist on such Increased Amount have occurred and be continuing or would result from any borrowing to be made as of the Loan Increase Effective Date after giving effect or otherwise with respect to such Incremental Commitments, as applicablethe Commitment Increase; (2) the Incremental Commitments will share in representations and warranties made by the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, BorrowerBorrowers herein shall be effected pursuant true and correct in all material respects (or in all respects to the extent otherwise qualified by materiality or Material Adverse Effect) on and as of the Loan Increase Effective Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date (in which event such representations and warranties shall have been true and correct in all material respects (or in all respects to the extent otherwise qualified by materiality or Material Adverse Effect) on and as of such earlier date); the Borrower Representative shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the U.S. Borrower certifying clauses (i) and (ii); and the Commitment Increase has been accepted by one or more Joinder Agreements Lenders or Additional Incremental Lenders. The terms and conditions of any Incremental Loan made pursuant to a Commitment Increase shall be as follows: on and after each Loan Increase Effective Date, each Lender (eachincluding Additional Incremental Lender(s)) shall be obligated, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicableof its commitment, in accordance with the requirements set forth in this Agreement to provide Loans to the BorrowerBorrowers under each Incremental Loan subject to the Borrower’sBorrowers’ compliance with the terms and conditions of this Agreement applicable to all Loans, including with respect to borrowing procedures and conditions precedent to all Loans; each Commitment Increase shall be in a minimum amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof; and each Commitment Increase shall be documented pursuant to an incremental joinder agreement (the “Incremental Joinder”) reasonably satisfactory to the Administrative Agent, executed by the BorrowerBorrowers, the Administrative Agent and the Issuing each Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to making such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this AgreementLoan. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other LendersLender, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.5. In addition, and for unless otherwise specifically provided herein, all references in this Agreement or any other Credit Document to Loans shall be deemed to include a reference to Incremental Loans that are Loans made pursuant to this Agreement. Prior to each respective Loan Increase Effective Date, the avoidance of doubt, this Section 2.25 Administrative Agent shall supersede any provisions receive from each Additional Incremental Lender an administrative questionnaire in Section 10.7 or 10.1 the form reasonably satisfactory to the contrary. (g) Administrative Agent or, in the case of an existing Lender, an update to such administrative questionnaire and the Administrative Agent shall adjust each Lender’s Pro Rata Share to account for each such Lender and/or Additional Incremental Lender and each Commitment Increase and related Incremental Loan. The Incremental Loans and Commitments extended or Commitment Increases established pursuant to this paragraph Section 2.5 shall constitute Loans and Commitments for all purposes under, and shall be entitled to all the rights, benefits and remedies afforded by this Agreement and the other Credit Documents, and shall, without limiting the foregoing, benefit equally and ratably, on a pari passu basis, from all security interests created by each Pledge Agreement and the guarantees of the Guarantors. The Obligors shall take any actions and execute and deliver any instrument reasonably required by the Administrative Agent to evidence and ensure that the Liens and security interests granted by the Pledge Agreements extend to and benefit the Incremental Loans and continue to be effective and perfected following the establishment of any such Incremental Loan or Commitment Increase. Each Lender providing an Incremental Loan or a Commitment Increase on the Loan Increase Effective Date shall make a Loan, the proceeds of which will be used to prepay the Loans of the other Lenders immediately prior to such Loan Increase Effective Date, so that, after giving effect thereto, the Loans outstanding are held by the Lenders pro rata based on their Individual Commitments after giving effect to such Loan Increase Effective Date. If there is a new borrowing of Loans on such Loan Increase Effective Date, the Lenders after giving effect to such Loan Increase Effective Date shall make such Loans in accordance with Article 3.

Appears in 1 contract

Sources: Revolving Facility Credit Agreement (Royal Gold Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Date, the Borrower may at any time, by written notice to the Administrative Agent elect to Agent, request (A) prior that, subject to the Revolving Termination Datefollowing conditions and otherwise in accordance with this Agreement, Lenders and/or New Lenders, provide up to an aggregate amount of $250,000,000 in additional loans (the “Incremental Loans”), which Incremental Loans may be provided as one or more increases in the amount additional tranches of Revolving Commitments term loans (a Revolving Facility IncreaseIncremental Term Loans”), (B) the establishment of as one or more new revolving credit commitments additional tranches of delayed draw term loans (any such new commitments, collectively with any Revolving Facility Increase, the New Revolving Credit CommitmentsIncremental Delayed Draw Term Loans), (C) prior to the Term Maturity Date, the establishment of or as one or more new term loan commitments which may be tranches of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term revolving loans (collectively with any Term Loan Increase, the New Term Commitments” and the New Term Commitments, collectively with any New Incremental Revolving Credit Commitments, the “Incremental CommitmentsLoans”). Each Incremental Commitment shall be in an aggregate principal amount that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein; provided, the Incremental Commitments shall not exceedthat, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 and (2) if there are any unsecured Incremental Notes outstanding, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made pursuant to this Section 2.25); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower proposes that such Incremental Commitments shall be effective, which shall be a date after the date on which such notice is delivered to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New Revolving Credit Commitments. Such Incremental Commitments shall become effective, as of such Increased Amount Date; provided that (1i) no Default or Event of Default shall exist on such Increased Amount Date after giving effect to have occurred and be continuing or result from such Incremental CommitmentsLoans, as applicable; (2ii) the Incremental Commitments will share in the Collateral on a pari passu basis; (3) terms of the Incremental CommitmentsLoans are in compliance with Section 2.8(c) below, as applicable, shall be effected pursuant to one or more Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicable, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4iii) the Borrower shall be have received all approvals from all applicable Gaming Authorities necessary or, in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing discretion of the maximum amount of Loans available under the Facilities after giving effect to Administrative Agent, advisable in connection with such Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5iv) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans have delivered to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (b) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice legal opinion of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche special or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, local counsel as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed reasonably requested by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount DateAdministrative Agent; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Borrower shall have delivered to the Administrative Agent title and extended coverage insurance for each real property Collateral covering the amount of the Incremental Loans containing such endorsements and affirmative coverage as the Administrative Agent may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; reasonably request; and (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility Administrative Agent and Borrower shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such execute conforming amendments to this Agreement and the other Loan Documents as may be necessary or appropriate(collectively, the “Incremental Facility Amendments”) to reflect such Incremental Loans without the consent of any Lender, including, without limitation, to provide for the terms set forth in the Incremental Facility Activation Notice described below or Section 2.8(c). (b) Upon receipt of such notice and an officer’s certificate as to the satisfaction of the foregoing conditions, Administrative Agent shall use all commercially reasonable opinion efforts to arrange for Lenders or New Lenders to provide such Incremental Loans. Alternatively, any Lender may commit to provide the full amount of the requested Incremental Loans and then offer portions of such Incremental Loans to the other Lenders or other financial institutions, subject to the approval of Administrative Agent. Nothing contained in this paragraph or otherwise in this Agreement is intended or will be required to commit any Lender or any Agent to provide any portion of any such additional Incremental Loans. (c) The Incremental Loans (a) shall rank pari passu in right of payment and of security with the Revolving Loan, the Term Loans and the Delayed Draw Term Loans, (b) shall not mature earlier than the Term Loan Maturity Date and Delayed Draw Term Loan Maturity Date (but may, subject to clause (c) below, have amortization prior to such date), (c) shall not have a weighted average life that is shorter than the then-remaining weighted average life of the Term Loans or the Delayed Draw Term Loans, and (d) except as set forth above, shall be treated substantially the same as (and in any event no more favorably than) the Term Loans and the Delayed Draw Term Loans (in each case, including with respect to mandatory and voluntary prepayments), provided that if the Applicable Margin relating to any Incremental Loan (as adjusted for upfront fees payable to Lenders of the Incremental Loans and original issue discount) exceeds the Applicable Margin relating to the Term Loans and the Delayed Draw Term Loans immediately prior to the effectiveness of the Incremental Facility Amendments by more than 0.25%, the Applicable Margin relating to the Term Loans and the Delayed Draw Term Loans shall be adjusted to an amount equal to the Applicable Margin of the Incremental Loans (as such Applicable Margin is adjusted to reflect for upfront fees payable to the Lenders of the Incremental Loans and original issue discount) minus 0.25%. (d) Prior to the expiration of the Delayed Draw Term Loan Commitment Period, if this Agreement is amended, supplemented or restated to add an additional credit facility and/or additional term loans to refinance the existing Term Loans or the Delayed Draw Term Loans, the Applicable Margin on the new term loans cannot be less than the existing Applicable Margin on the Term Loans and the Delayed Draw Term Loans, without unanimous written consent of the Term Loan Lenders or Delayed Draw Term Loan Lenders. (e) The Borrower and any one or more Lenders (including New Lenders) that agree to provide Incremental Loans shall execute and deliver to the Administrative Agent an Incremental Facility Activation Notice specifying, in compliance with Section 2.8(c): (i) the amount of the Incremental Loans and the Facility or Facilities involved, (ii) the applicable Incremental Loans closing date which shall be a Business Day, (iii) the Incremental Loans maturity date, (iv) the amortization schedule for the Incremental Term Loans and Incremental Delayed Draw Term Loans, as applicable, and (v) the Applicable Margin for such Incremental Loans. 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), elects to effect become a “Lender” under this Agreement in connection with any transaction described in Section 2.8(c) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit B-2, whereupon (i) 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 and (ii) the Incremental Term Loans shall be treated as “Term Loans” and the Incremental Delayed Draw Term Loans shall be treated as “Delayed Draw Term Loans,” and the “Incremental Revolving Credit Loans” shall be treated as “Revolver Credit Loans” for all purposes of this Agreement, other than for purposes of the provisions of this Section 2.25, and for Agreement specifically modified or addressed in the avoidance of doubt, this Section 2.25 shall supersede any provisions in Section 10.7 or 10.1 to the contraryIncremental Facility Activation Notice. (g) The Loans and Commitments extended or established pursuant to this paragraph shall constitute Loans and Commitments under, and shall

Appears in 1 contract

Sources: Credit Agreement (Pinnacle Entertainment Inc)

Incremental Loans. (a) At any time or from time to time after the Closing Effective Date and prior to the Facility Termination Date, the Borrower Company may by written notice to the Administrative Agent elect to request (A) prior to the Revolving Termination Date, establishment of one or more increases in the amount of Aggregate Commitment (any such increase, an “Incremental Revolving Commitments Credit Commitment”) to make revolving credit loans under the Revolving Credit Facility (a any such increase, an Incremental Revolving Facility Credit Increase”), (B) the establishment of one or more new revolving credit commitments (any such new commitments, collectively with any Revolving Facility Increase, the “New Revolving Credit Commitments”), (C) prior to the Term Maturity Date, the establishment of one or more new term loan commitments which may be of the same tranche as such existing Term Loans (a “Term Loan Increase”) or a separate tranche of new term loans (collectively with any Term Loan Increase, the “New Term Commitments” and the New Term Commitments, collectively with any New Revolving Credit Commitments, the “Incremental Commitments”). Each Incremental Commitment shall be in an aggregate principal amount ; provided that is not less than $5,000,000 individually and in integral multiples of $1,000,000 in excess of that amount. Notwithstanding anything to the contrary herein, the Incremental Commitments shall not exceed, (x) together with the aggregate principal amount of any Incremental Notes, $100,000,000 plus (y) an additional amount of Incremental Commitments so long as in the case of this clause (y), (1) the Senior Secured First Lien Leverage Ratio total aggregate principal amount for all such increases during the term of the Borrower and its Restricted Subsidiaries would be no greater than 3.75 to 1.0 this Agreement shall not exceed $2,000,000,000 and (2) the total aggregate amount for each Incremental Revolving Credit Increase shall not be less than $25,000,000 or, if there are any unsecured Incremental Notes outstandingless, the Consolidated Total Net Debt Leverage Ratio would be no greater than 6.00:1.00, in each case, as of the end of the most recently ended fiscal quarter after giving pro forma effect to such Incremental Commitments (and, in each case, assuming a borrowing of the maximum remaining amount of Loans available under the Facilities after giving effect to such Incremental Commitments and any Incremental Commitments previously made permitted pursuant to this Section 2.25the foregoing clause (1); provided that in no event shall the New Revolving Credit Commitments exceed $30,000,000. Each such notice shall specify (A) the date (each, an “Increased Amount Date”) on which the Borrower Company proposes that such any Incremental Commitments Revolving Credit Increase shall be effective. The Company may invite any Lender, which shall be a date after the date on which such notice is delivered any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent and (B) the identity of each existing Lender or other Person that is an Assignee (each, a “New Revolving Credit Lender” or “New Term Lender,” as applicable) to whom the Borrower proposes any portion of such Incremental Commitments, be allocated and the amounts of such allocations; provided that (w) any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment (it being understood that there is no obligation to approach any existing Lenders to provide any Incremental Commitment), (x) the Administrative Agent, the Issuing Lender and the Swingline Lender shall have consented (such consent not to be unreasonably withheld) to such Person’s providing such Incremental Commitments if such consent of the Administrative Agent, the Issuing Lender and Swingline Lender would be required under Section 10.6 for an assignment of Loans or Commitments to such Person, (y) with respect to New Term Commitments, any Affiliated Lender providing a New Term Commitment shall be subject to the same restrictions set forth in Section 10.6(c) as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (z) Affiliated Lenders may not provide New an “Incremental Lender”). Any Incremental Revolving Credit Commitments. Such Incremental Commitments shall become effective, effective as of such Increased Amount Date; provided that that: (1a) no Unmatured Default or Event of Default shall exist on such Increased Amount Date; (b) each of the representations and warranties contained in Article 5 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Increased Amount Date after giving with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall be true and correct in all material respects (except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects) as of such earlier date); (c) in the case of each Incremental Revolving Credit Increase: (i) the outstanding Revolving Loans and Pro Rata Shares of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders (including the Incremental Lenders providing such Incremental Commitments, as applicable; Revolving Credit Increase) in accordance with their revised Pro Rata Share (2) and the Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Company shall pay any and all costs required pursuant to Section 3.04 in connection with such reallocation as if such reallocation were a repayment); and (ii) such Incremental Revolving Credit Commitments will share in the Collateral on a pari passu basis; (3) the Incremental Commitments, as applicable, shall be effected pursuant to one or more Lender Joinder Agreements (each, an “Incremental Joinder Agreement”) executed and delivered by the Borrower, the New Revolving Credit Lender or New Term Lender, as applicable, and to the extent applicableCompany, the Administrative Agent and the Issuing Lender and the Swingline Lender, or another form of incremental amendment, each of which shall be recorded in the Register; (4) the Borrower shall be in pro forma compliance with the financial covenants in Section 7.1 (assuming a borrowing of the maximum amount of Loans available under the Facilities after giving effect to such applicable Incremental Commitment, and any Incremental Commitments previously made pursuant to this Section 2.25, and in any event, after giving effect to any acquisitions or dispositions during the relevant determination period or simultaneously with the borrowing of the Incremental Loans); and (5) the Borrower shall pay, or cause to be paid, all fees and expenses owing in respect of such Incremental Loans to the Administrative Agent, the Collateral Agent and the Lenders (other than any Defaulting Lender). (bwhich Lender Joinder Agreement(s) On any Increased Amount Date on which New Revolving Credit Commitments are effected through a Revolving Facility Increase, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Lenders shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolving Lenders, at the principal amount thereof, such interests in the New Revolving Credit Loans (as defined below) outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Revolving Lenders and New Revolving Credit Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such New Revolving Commitments to the Revolving Commitments, (b) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (c) each New Revolving Credit Lender shall become a Lender with respect to the New Revolving Credit Commitments and all matters relating thereto. (c) Any New Term Loans or New Revolving Loans effected through the establishment of one or more new revolving credit commitments or new Term Loans made on an Increased Amount Date shall be designated a separate tranche of New Term Loans or New Revolving Credit Commitments, as applicable, for all purposes of this Agreement. On any Increased Amount Date on which any New Term Commitments of any tranche are effected (including through any Term Loan Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Term Lender of such tranche shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Commitment of such tranche, and (ii) each New Term Lender of such tranche shall become a Lender hereunder with respect to the New Term Commitment of such tranche and the New Term Loans of such tranche made pursuant thereto. On any Increased Amount Date on which any New Revolving Credit Commitments of any tranche are effected through the establishment of one or more new revolving credit commitments (including through any Revolving Facility Increase), subject to the satisfaction of the foregoing terms and conditions, (i) each New Revolving Credit Lender of such tranche shall make its Commitment available to the Borrower (when borrowed, a “New Revolving Credit Loan” and collectively with any New Term Loan, an “Incremental Loan”) in an amount equal to its New Revolving Credit Commitment of such tranche, and (ii) each New Revolving Credit Lender of such tranche shall become a Lender hereunder with respect to the New Revolving Credit Commitment of such tranche and the New Revolving Credit Loans of such tranche made pursuant thereto. Notwithstanding the foregoing, New Term Loans may have identical terms to the Term Loans and be treated as the same tranche as the Term Loans. (d) The Administrative Agent shall notify Lenders promptly upon receipt of the Borrower’s notice of each Increased Amount Date and in respect thereof (x) the tranche of New Revolving Credit Commitments and the New Revolving Credit Lenders of such tranche or the tranche of New Term Commitments and the New Term Lenders of such tranche, as applicable, and (y) in the case of each notice to any Revolving Lender with respect to an increase in the applicable Revolving Commitments, the respective interests in such Revolving Lender’s Revolving Commitments, in each case subject to the assignments contemplated by clause (b) of this Section 2.25. (e) The terms, provisions and documentation of the New Term Loans and New Term Commitments or the New Revolving Credit Loans and New Revolving Credit Commitments, as the case may be, of any tranche shall be as agreed between the Borrower and the New Term Lenders or New Revolving Credit Lenders, as applicable, providing such New Term Loans and New Term Commitments or such New Revolving Credit Loans and New Revolving Credit Commitments, and except as otherwise set forth herein, to the extent not identical to the Term Loans or Revolving Loans, as applicable, shall be reasonably satisfactory to Administrative Agent. In any event: (i) the Weighted Average Life to Maturity of all New Term Loans of any tranche shall be no shorter than the Weighted Average Life to Maturity of the then outstanding Term Loans on the date of incurrence of such New Term Loans; (ii) (A) the final maturity date of any tranche of the New Term Loans shall be no earlier than the original Term Maturity Date and (B) the final maturity date of any tranche of the New Revolving Credit Loans shall be no earlier than the original Revolving Maturity Date; (iii) (A) in the case of a Term Loan Increase, any New Term Loans shall be on the same terms and pursuant to the same documentation as the Term Loans increased thereby and (B) in the case of a Revolving Facility Increase, any New Revolving Loans and New Revolving Credit Commitments shall be on the same terms and pursuant to the same documentation as the Revolving Loans and the Revolving Commitments, as applicable; or in each case, as may be otherwise agreed between the Lenders providing such Incremental Commitments or Incremental Loans; (iv) all other material terms of the New Revolving Credit Commitments and New Revolving Credit Loans shall be identical to the Revolving Commitments, on the Increased Amount Date, other than the Maturity Date and as set forth in this Section 2.25(e)(vi); provided that, notwithstanding anything to the contrary in this Section 2.25 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Loans with respect to New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, (2) subject to the provisions of Sections 2.03(n) and 2.04(g) to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after a maturity date when there exists New Revolving Credit Commitments with a longer maturity date, all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders in accordance with their percentage of the Revolving Commitments on the Increased Amount Date (and except as provided in Section 2.03(n) and Section 2.04(g), without giving effect to changes thereto on an earlier maturity date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Increased Amount Date shall be made on a pro rata basis with all other Revolving Commitments on the Increased Amount Date, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such tranche on a better than a pro rata basis as compared to any other tranche with a later maturity date than such tranche and (4) assignments and participations of New Revolving Credit Commitments and New Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Commitments and Revolving Credit Loans on the Increased Amount Date. Any New Revolving Credit Commitments may constitute a separate tranche or tranches, as the case may be, of Commitments from the tranches constituting the applicable Revolving Commitments prior to the Increased Amount Date; provided at no time shall there be Revolving Commitments hereunder (including New Revolving Credit Commitments and any original Revolving Commitments) which have more than three different maturity dates; (v) the New Term Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Term Loans hereunder, as specified in the applicable Incremental Joinder Agreement; (vi) with regards to any New Term Loan, if the applicable interest rate relating to such New Term Loan exceeds the interest rate of the initial Term Facility by more than 50 basis points, the applicable interest rate relating to such Term Facility shall be adjusted to be equal to the applicable interest rate relating to such New Term Loan minus 50 basis points; provided, further, that in determining such applicable interest rates, (x) original issue discount or upfront fees (but exclusive of any arrangement, structuring or other fees payable to any arrangers in connection therewith that are not shared with all Lenders providing such New Term Loans) (which shall be deemed to constitute a like amount of original issue discount) paid by the Borrower to the Lenders under the New Term Loan and such initial Term Facility in the initial primary syndication thereof shall be included and equated to interest rate (with original issue discount being equated to interest based on an assumed four-year life to maturity) and (y) any amendments to the applicable margin on any initial Term Facility that became effective subsequent to the Closing Date but prior to the time of such New Term Loan shall also be included in such calculations; provided, further, that if the reserve adjusted Eurodollar Rate (as defined below) in respect of such New Term Loan includes an interest rate floor greater than the interest rate floor applicable to such initial Term Facility, such increased amount shall be equated to interest rate for purposes of determining whether an increase to the applicable interest margin under the initial Term Facility shall be required, to the extent an increase in the interest rate floor in such Term Facility would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the interest rate margin) applicable to such Term Facility shall be increased by such increased amount; (vii) the New Term Loans and/or New Revolving Credit Loans will rank pari passu in right of payment with existing Term Loans and Revolving Credit Loans and the liens securing the New Term Loans and/or New Revolving Credit Loans will rank pari passu with the liens securing the existing Term Loans and Revolving Credit Loans. (f) Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.252.22); (d) No existing Lender shall be obligated to participate in any Incremental Revolving Credit Increase, and for the avoidance of doubt, this Section 2.25 each Lender’s decision to provide (or not provide) an Incremental Revolving Credit Commitment in any instance shall supersede any provisions be made in Section 10.7 or 10.1 to the contrarysuch ▇▇▇▇▇▇’s sole and absolute discretion in each case. (ge) The Loans On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the foregoing terms and Commitments extended or established pursuant to this paragraph conditions, each Incremental Lender with an Incremental Revolving Credit Commitment shall constitute Loans and Commitments under, and shallbecome a Lender hereunder.

Appears in 1 contract

Sources: Credit Agreement (Salesforce, Inc.)