The Commitments. (a) Subject to and upon the terms and conditions set forth herein, each Lender with an Initial Term Loan Commitment severally agrees to make a term loan or term loans (each an “Initial Term Loan” and, collectively, the “Initial Term Loans”) to the Borrower, which Initial Term Loans (i) shall be incurred pursuant to a single drawing on the Effective Date, (ii) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, Eurodollar Loans, provided that, except as otherwise specifically provided in Section 1.10(b), all Initial Term Loans comprising the same Borrowing shall at all times be of the same Type, and (iii) shall be made by each such Lender in that aggregate principal amount which does not exceed the Initial Term Loan Commitment of such Lender on the Effective Date. Once repaid, Initial Term Loans incurred hereunder may not be reborrowed. (b) Subject to and upon the terms and conditions set forth herein, each Lender with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Effective Date and prior to the Revolving Loan Maturity Date, to make a revolving loan or revolving loans (each, a “Revolving Loan” and, collectively, the “Revolving Loans”) to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, Eurodollar Loans, provided that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed at any time in accordance with the provisions hereof, (iii) shall not exceed for any such Lender at any time outstanding that aggregate principal amount which, when added to the product of (A) such Lender’s Percentage and (B) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. (c) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make, at any time and from time to time after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time, and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender’s risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender’s Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to exist. (d) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all such Lenders pro rata based on each such Lender’s Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each such Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loan. (e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions conditions set forth herein, each Lender Bank with an Initial a Term Loan Commitment severally agrees to make a term loan or term loans (each an “Initial a "Term Loan” " and, collectively, the “Initial "Term Loans”") to the Borrower, which Initial Term Loans (i) shall be incurred pursuant to a single drawing by the Borrower on the Effective Initial Borrowing Date, (ii) shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, except as otherwise otherwise specifically provided in Section 1.10(b), all Initial Term Loans comprising comprising the same Borrowing shall at all times be of the same Type, and (iii) shall be made by each such Lender Bank in that aggregate principal amount which does not exceed the Initial Term Loan Commitment of such Lender Bank on the Effective DateInitial Borrowing Date (before giving effect to the termination thereof on such date pursuant to Section 3.03(b)). Once repaid, Initial Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a Revolving Loan Commitment severally agreesagrees to make, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Revolving Loan Maturity Date, to make a revolving revolving loan or revolving loans (each, each a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, except as otherwise specifically specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, (iii) shall not exceed for any such Lender Bank at any time outstanding outstanding that aggregate principal amount which, when added to the product of (Ax) such Lender’s Bank's RL Percentage and (By) the sum of (I) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender Bank at such time and (iv) shall not exceed for all Lenders such Banks at any time outstanding outstanding that aggregate principal principal amount which, when added to the sum of (I) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with 3 the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof.
(c) Subject to and upon the terms and conditions set forth herein, the Swingline Lender Bank agrees to make, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a “"Swingline Loan” " and, collectively, the “"Swingline Loans”") to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstandingoutstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding outstanding and the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time, time and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding . Notwithstanding anything to the contrary contained in preceding clauses (iii) and (ivthis Section 1.01(c), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (ix) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender Bank shall not be obligated to make any Swingline Loans at a time when a Lender Bank Default exists unless the Swingline Lender Bank has entered into an arrangement arrangements satisfactory to it and the Borrower, Borrower to eliminate the Swingline Lender’s Bank's risk with respect to the Lender which is the subject of Defaulting Bank's or Banks' participation in such Lender DefaultSwingline Loans, including by cash collateralizing the Lender’s collateralizing such Defaulting Bank's or Banks' RL Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), Loans and (y) the Swingline Lender Bank shall not make any Swingline Loan after it has received written notice from the Borrower Borrower, any other Credit Party or the Required Lenders Banks stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender Bank shall have received written notice (iI) of rescission of all such notices from the party or parties originally delivering such notice, notice or (iiII) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to existBanks.
(d) On any Business Day, the Swingline Lender Bank may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments that its RL B▇▇▇▇ ▇▇▇t the Swingline Bank's outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “"Mandatory Borrowing”") shall be made on the immediately succeeding Business Day by all such Lenders pro RL B▇▇▇▇ ▇▇▇ rata based on each such Lender’s RL Bank's RL Percentage (determined determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly by the Swingline Bank to repay the Swingline Lender Bank for such outstanding Swingline Loans. Each such Lender RL Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day’s 's notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender Bank notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loan.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
Sources: Credit Agreement (Scot Inc)
The Commitments. (a) Subject to and upon the terms and conditions conditions set forth herein, each Lender Bank with an Initial a Tranche A-1 Term Loan Commitment severally agrees to make make, on the Initial Borrowing Date, a term loan or term loans (each an “Initial a "Tranche A-1 Term Loan” " and, collectively, the “Initial "Tranche A-1 Term Loans”") to the Borrower, which Initial Tranche A-1 Term Loans (i) shall be incurred pursuant to a single drawing on the Effective Date, (ii) shall, at the option of the Borrower, be incurred and maintained as and/or converted into Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, except as otherwise otherwise specifically provided in Section 1.10(b), all Initial Tranche A-1 Term Loans comprising comprising the same Borrowing shall at all times be of the same Type, Type and (iiiii) shall be made by each such Lender Bank in that initial aggregate principal amount which does not exceed as is equal to the Initial Tranche A-1 Term Loan Commitment of such Lender Bank on the Effective Datesuch date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(a)). Once repaid, Initial Tranche A-1 Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a Revolving Tranche A-2 Term Loan Commitment severally agreesagrees to make, at any time and from time to time on and or after the Effective Initial Borrowing Date and on or prior to the Revolving Tranche A-2 Term Loan Maturity Commitment Termination Date, to make a revolving term loan or revolving term loans (each, each a “Revolving "Tranche A-2 Term Loan” " and, collectively, the “Revolving "Tranche A-2 Term Loans”") to the Borrower, which Revolving Tranche A-2 Term Loans (i) shall, at the option of the Borrower, be incurred and maintained as and/or converted into Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, except as otherwise specifically specifically provided in Section 1.10(b), all Revolving Tranche A-2 Term Loans comprising the same Borrowing shall at all times be of the same Type, Type and (ii) may be repaid and reborrowed at any time in accordance with the provisions hereof, (iii) made by each Bank on a given Tranche A-2 Term Loan Borrowing Date shall not exceed for any such Lender at any time outstanding that aggregate exceed, in principal amount whichamount, when added to the product of (A) such Lender’s Percentage and (B) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Bank's Tranche A-2 Term Loan Commitment of on such Lender at such time and date (iv) shall not exceed for all Lenders at before giving effect to any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred reductions thereto pursuant to this Agreement if Section 3.03(b)(i) or (ii) but after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect any reductions thereto on or prior to such incurrence of Revolving date pursuant to Sections 3.03(b)(iii)). Once repaid, Tranche A-2 Term Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall hereunder may not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereofreborrowed.
(c) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make, at any time and from time to time after the Effective Date and prior to the Swingline Expiry Date, each Bank with a revolving loan or revolving loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time, and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender’s risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender’s Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to exist.
(d) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all such Lenders pro rata based on each such Lender’s Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each such Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loan.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Tranche A-3 Term Loan Commitment severally agrees to make a term loan or term loans (eachmake, an “Incremental Term Loan” and, collectively, on the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Initial Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);,
Appears in 1 contract
Sources: Credit Agreement (JCC Holding Co)
The Commitments. (a) Subject to and upon the terms and conditions conditions set forth herein, each Lender Bank with an Initial a Tranche A Term Loan Commitment severally agrees to make make, on the Initial Borrowing Date, a term loan or term loans (each an “Initial each, a "Tranche A Term Loan” " and, collectively, the “Initial "Tranche A Term Loans”") to the Borrower, which Initial Tranche A Term Loans (i) shall be incurred pursuant to made and initially maintained as a single drawing on the Effective Date, (ii) shall, at the option Borrowing of the Borrower, be Base Rate Loans or, (subject to Section 1.15, Eurodollar Loans, provided that, except as otherwise specifically provided in Section 1.10(b), all Initial the option to convert such Tranche A Term Loans comprising the same Borrowing shall at all times be of the same Type, pursuant to Section 1.06) and (iiiii) shall be made by each such Lender Bank in that initial aggregate principal amount which does not exceed as is equal to the Initial Tranche A Term Loan Commitment of such Lender Bank on the Effective Datesuch date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)(i) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(b)(ii)). Once repaid, Initial Tranche A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a Tranche B Term Loan Commitment severally agrees to make, on the Initial Borrowing Date, a term loan (each, a "Tranche B Term Loan" and, collectively, the "Tranche B Term Loans") to the Borrower, which Tranche B Term Loans (i) shall be made and initially maintained as a single Borrowing of Base Rate Loans (subject to the option to convert such Tranche B Term Loans pursuant to Section 1.06) and (ii) shall be made by each Bank in that initial aggregate principal amount as is equal to the Tranche B Term Loan Commitment of such Bank on such date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(c)(i) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(c)(ii)). Once repaid, Tranche B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Revolving Loan Maturity Date, to make a revolving revolving loan or revolving loans (each, a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, that (A) except as otherwise specifically specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same TypeType and (B) no Revolving Loans maintained as Eurodollar Loans may be incurred prior to the earlier of (1) the 14th day after the Initial Borrowing Date and (2) the Syndication Date, (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, (iii) shall not exceed for any such Lender Bank at any time outstanding outstanding that aggregate principal amount which, when added to the product of (Ax) such Lender’s Bank's Adjusted Percentage and (By) the sum of (I) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender Bank at such time and (iv) shall not exceed for all Lenders Banks at any time outstanding outstanding that aggregate principal principal amount which, when added to (Ix) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (IIy) the aggregate aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof.
(cd) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Lender Bank in its individual capacity agrees to make, make at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a “"Swingline Loan” " and, collectively, the “"Swingline Loans”") to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstandingoutstanding, when combined with the aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks then outstanding outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Adjusted Total Revolving Loan Commitment at such timetime (after giving effect to any reductions to the Adjusted Total Revolving Loan Commitment on such date), and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) Amount and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (iv) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless extended if the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender’s risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender’s Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received Bank receives a written notice from the Borrower any Agent or the Required Lenders stating Banks that has not been rescinded that there is a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to existexistence hereunder.
(de) On any Business Day, the Swingline Lender Bank may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments other Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings a Borrowing of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “"Mandatory Borrowing”") shall be made on the immediately succeeding Business Day by all such Lenders Banks with a Revolving Loan Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 10) pro rata based on each such Lender’s Bank's Adjusted Percentage (determined determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to the Swingline Bank to repay the Swingline Lender Bank for such outstanding Swingline Loans. Each such Lender Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day’s 's notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender Bank notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of the Total Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders Banks to share in such Swingline Loans ratably based upon their respective Adjusted Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment Commitments pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender Bank shall be required to pay the Swingline Lender Bank interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participationparticipation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loanthereafter.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions conditions set forth herein, each Lender with an Initial a Term Loan A Commitment severally agrees to make make, on the Effective Date, a term loan or term loans (each an “Initial each, a "Term Loan” and, Loan A" and collectively, the “Initial "Term Loans”Loans A") to the Borrower, which Initial Term Loans A (i) shall be incurred pursuant to made and initially maintained as a single drawing on the Effective Date, (ii) shall, at the option Borrowing of the Borrower, be Base Rate Loans or, (subject to Section 1.15, Eurodollar Loans, provided that, except as otherwise specifically provided in Section 1.10(b), all Initial the option to convert such Term Loans comprising the same Borrowing shall at all times be of the same Type, A pursuant to Section 1.06) and (iiiii) shall be made by each such Lender in that initial aggregate principal amount which does not exceed as is equal to the Initial Term Loan Loans A Commitment of such Lender on the Effective Datesuch date. Once repaid, Initial Term Loans incurred hereunder A may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender with a Term Loan B Commitment severally agrees to make, on the Effective Date, a term loan (each, a "Term Loan B" collectively, the "Term Loans B" and, together with Term Loans A, the "Term Loans") to the Borrower, which Term Loans B (i) shall be made and initially maintained as a single Borrowing of Base Rate Loans (subject to the option to convert such Term Loans B pursuant to Section 1.06) and (ii) shall be made by each Lender in that initial aggregate principal amount as is equal to the Term Loans B Commitment of such Lender on such date. Once repaid, Term Loans B may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each Lender with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Effective Date and prior to the Revolving Loan RL Maturity Date, to make a revolving revolving loan or revolving loans (each, a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, that except as otherwise specifically specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, and (iii) shall not exceed for any such Lender at any time outstanding outstanding that aggregate principal amount which, when added to the product of (Ax) such Lender’s 's Percentage and (By) the sum of (I) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (x) the amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (y) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof.
(cd) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Lender in its individual capacity agrees to make, make at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a “"Swingline Loan” " and, collectively, the “"Swingline Loans”") to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstandingoutstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such timetime (after giving effect to any reductions to the Revolving Loan Commitment on such date), and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) Amount and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (iv) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when extended if the entire principal amount Swingline Lender receives a written notice from any Agent or the Required Lenders that has not been rescinded that there is a Default or an Event of all outstanding Senior Subordinated Notes has been indefeasibly repaid Default in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereofexistence hereunder. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into an arrangement arrangements satisfactory to it and the Borrower, Borrower to eliminate the Swingline Lender’s 's risk with respect to the Lender which is the subject of Defaulting Lender's or Lenders' participation in such Lender DefaultSwingline Loans, including by cash collateralizing the collateralizing such Defaulting Lender’s 's or Lenders' Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to exist.
(de) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the other Lenders with Revolving Loan Commitments that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings a Borrowing of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “"Mandatory Borrowing”") shall be made on the immediately succeeding Business Day by all such Lenders with a Revolving Loan Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 10) pro rata based on each such Lender’s 's Percentage (determined determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to the Swingline Lender to repay the Swingline Lender for such outstanding Swingline Loans. Each such Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day’s 's notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment Commitments pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participationparticipation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loanthereafter.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions conditions set forth herein, each Lender Bank with an Initial a Tranche A Term Loan Commitment severally agrees to make on the Effective Date a term loan or term loans (each an “Initial such term loan, a "Tranche A Term Loan” " and, collectively, the “Initial "Tranche A Term Loans”") to the Borrower, which Initial Tranche A Term Loans (i) shall be incurred pursuant to made and initially maintained as a single drawing on the Effective Date, (ii) shall, at the option Borrowing of the Borrower, be Base Rate Loans or, (subject to the option to convert such Tranche A Term Loans pursuant to Section 1.15, Eurodollar Loans, 1.07); provided that, except as otherwise otherwise specifically provided in Section 1.10(b1.11(b), all Initial Tranche A Term Loans comprising comprising the same Borrowing shall at all times be of the same Type, and (iiiii) shall be made by equal for each such Lender Bank, in that initial aggregate principal amount, an amount which does not exceed equals the Initial Tranche A Term Loan Commitment of such Lender Bank on the Effective DateDate (before giving effect to any reductions thereto on such date pursuant to Section 3.03(a)). Once repaid, Initial Tranche A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a Tranche B Term Loan Commitment severally agrees to make on the Effective Date a term loan (each such term loan, a "Tranche B Term Loan" and, collectively, the "Tranche B Term Loans") to the Borrower, which Tranche B Term Loans (i) shall be made and initially maintained as a single Borrowing of Base Rate Loans (subject to the option to convert such Tranche B Term Loans pursuant to Section 1.07); provided that, except as otherwise specifically provided in Section 1.11(b), all Tranche B Term Loans comprising the same Borrowing shall at all times be of the same Type, and (ii) shall equal for each Bank, in initial aggregate principal amount, an amount which equals the Tranche B Term Loan Commitment of such Bank on the Effective Date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)). Once repaid, Tranche B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment ("Revolving Loan Banks") severally agrees, at any time and from time to time on and after the Effective Date and prior to the Revolving Loan Maturity Date, to make a revolving revolving loan or revolving loans (each, a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, ; provided that, that except as otherwise specifically specifically provided in Section 1.10(b1.11(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, and provided further that if made on the Effective Date or the three subsequent Business Days, as Base Rate Loans (subject to the option to convert such Revolving Loans pursuant to Section 1.07), (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, (iii) shall not exceed for any such Lender Bank at any time outstanding outstanding that aggregate principal amount which, when added to the product of (Ay) such Lender’s Bank's Adjusted Percentage and (B) the sum of (Iz) the aggregate amount of all Letter of Credit Outstandings Outstandings plus all Swingline Loans then outstanding (exclusive of Unpaid Drawings and Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the incurrence of Revolving Loans) at such time, equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed for all Banks at any time outstanding that aggregate principal amount which, when added to the amount of all Swingline Loans then outstanding and all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds oftime, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above then in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereofeffect.
(cd) Subject to and upon the terms and conditions set forth herein, the Swingline Lender BTCo agrees to make, make at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans to the Borrower (each each, a “"Swingline Loan” " and, collectively, the “"Swingline Loans”) to the Borrower"), which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstandingoutstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings relating to Letters of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans or Revolving Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time, then in effect and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender BTCo shall not be obligated to make any Swingline Loans at a time when a Lender Bank Default exists unless the Swingline Lender BTCo has entered into an arrangement arrangements satisfactory to it and the Borrower, Borrower to eliminate the Swingline Lender’s BTCo's risk with respect to the Lender which is the subject of each Bank's (including any Defaulting Bank's) participation in such Lender DefaultSwingline Loans, including by cash collateralizing the Lender’s collateralizing such Defaulting Bank's or Banks' Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall BTCo will not make any a Swingline Loan after it has received written notice from the Borrower or the Required Lenders Banks stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender BTCo shall have received a written notice of (i) of rescission of all such notices notice from the party or parties originally delivering such notice, the same or (ii) of the a waiver of such Default or Event of Default by from the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to existBanks.
(de) On any Business Day, the Swingline Lender BTCo may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments Banks and the Borrower that its all outstanding Swingline Loans shall be funded funded
with one or more Borrowings a Borrowing of Revolving Loans (provided that each such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings a Borrowing of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “"Mandatory Borrowing”") shall be made on the immediately succeeding Business Day by all such Lenders Revolving Loan Banks pro rata based on each such Lender’s Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) Bank's Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender BTCo for such outstanding Swingline Loans. Each such Lender Revolving Loan Bank hereby irrevocably agrees to make Revolving Base Rate Loans upon one Business Day’s 's notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender BTCo notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum minimum amount of each Borrowing Amount pursuant to Section 1.03 otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then existshas occurred and is continuing, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of any reduction in the Total Revolving Loan Commitment at after any such timeSwingline Loans were made. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement commencement of a proceeding under the Bankruptcy Code with in respect to of the Borrower), then each such Lender Revolving Loan Bank (other than BTCo) hereby agrees that it shall forthwith purchase from BTCo (as without recourse or warranty) such assignment of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders the Revolving Loan Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment pursuant to the last paragraph of Section 10), Percentages; provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender BTCo until the date as of which the respective participation assignment is required to be purchased and, to the extent attributable to the purchased participationassignment, shall be payable to the participant Bank purchasing same from and after such date, (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loanpurchase.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
Sources: Credit Agreement (Appliance Warehouse of America Inc)
The Commitments. (a) Subject to and upon the terms and conditions conditions set forth herein, each Lender Bank with an Initial a Term Loan Commitment severally agrees agrees, (A) in the case of each Continuing Bank, to make convert into Term Loans (each, a "Term Loan Conversion", and collectively, the "Term Loan Conversions") on the Restatement Effective Date, the Original Term Loans made by such Continuing Bank to the Borrower pursuant to the Original Credit Agreement and outstanding on the Restatement Effective Date in an aggregate principal amount equal to the aggregate principal amount of such Original Term Loans made by such Continuing Bank and so outstanding and/or (B) to make, (I) on the Restatement Effective Date and (II) on a 9 single date occurring after the Restatement Effective Date and on or prior to the Term Loan Availability Termination Date (each date upon which Term Loans are made, a "Term Loan Borrowing Date"), a term loan or term loans (together with each an “Initial Term Loan Conversion each, a "Term Loan” " and, collectively, the “Initial "Term Loans”") to the Borrower, which Initial Term Loans (i) shall be incurred pursuant to a single drawing made or converted on the Restatement Effective Date, shall not exceed for any Bank, that amount which equals such Bank's TL Percentage of the aggregate principal amount of Term Loans incurred on such date, (ii) made on either Term Loan Borrowing Date, shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, except as otherwise otherwise specifically provided in Section 1.10(b), all Initial Term Loans comprising comprising the same Borrowing shall at all times be of the same Type, Type and (iii) made on either Term Loan Borrowing Date, shall be not exceed for any Bank, in initial principal amount for the Term Loans being made by each such Lender in Bank on any such Term Loan Borrowing Date, that aggregate principal amount which does not exceed equals the Initial remaining Term Loan Commitment Commitment, if any, of such Lender Bank as in effect on such Term Loan Borrowing Date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)(i) or (ii), but after giving effect to (x) any reductions thereto on or prior to such date pursuant to Section 3.03(b)(iii) and (y) the Effective DateTerm Loan Conversions referred to in clause (A) above). Once repaid, Initial Term Loans incurred borrowed hereunder may not be reborrowed. Notwithstanding anything to the contrary contained above, the aggregate amount of Term Loans incurred on the Restatement Effective Date shall not exceed $155,000,000.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a Revolving Loan Commitment severally agrees, (A) in the case of each Continuing Bank, to convert into Revolving Loans (each a "Revolving Loan Conversion", and together the "Revolving Loan Conversions"), on the Restatement Effective Date, Original Revolving Loans made by such Continuing Bank to the Borrower pursuant to the Original Credit Agreement and outstanding on the Restatement Effective Date in an aggregate principal amount equal to the lesser of (x) the aggregate principal amount of such Original Revolving Loans made by such Continuing Bank and so outstanding and (y) such Continuing Bank's Adjusted RL Percentage of the aggregate principal amount of Revolving Loans made by all Banks and outstanding on the Restatement Effective Date and/or (B) at any time and from time to time on and after the Restatement Effective Date and prior to the Revolving Loan Maturity Date, to make a revolving revolving loan or revolving loans (together with each Revolving Loan Conversion each, a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, except as otherwise specifically specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, (iii) shall not exceed for any such Lender Bank at any time outstanding that aggregate principal amount which, when added to the product of (A) such Lender’s Percentage and (B) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof.
(c) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make, at any time and from time to time after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time, and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender’s risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender’s Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to exist.
(d) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all such Lenders pro rata based on each such Lender’s Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each such Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loan.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
The Commitments. (a) (i) On the Closing Date, certain Lenders made Initial Term Loans to the Borrowers, which Initial Term Loans (i) were incurred by the Borrowers pursuant to a single drawing on the Closing Date, (ii) were denominated in U.S. Dollars, (iii) were and shall be, except as hereinafter provided, at the option of the Lead Borrower, incurred and maintained as, and/or converted into, one or more Borrowings of Base Rate Term Loans or LIBO Rate Term Loans, provided that except as otherwise specifically provided in Section 2.10(b), all Initial Term Loans comprising the same Borrowing shall at all times be of the same Type.
(a) Subject to and upon the terms and conditions conditions set forth herein, and in Amendment No. 1, each Lender with an Initial Term Loan Commitment severally agrees to make a term loan or term loans (each an “Initial Term Loan” and, collectively, the “Loan or Initial Term Loans”) Loans to the BorrowerBorrowers, which Initial Term Loans (i) shall be incurred by the Borrowers pursuant to a single drawing on the ClosingAmendment No. 1 Effective Date, (ii) shallshall be denominated in U.S. Dollars, (iii) shall except, as hereinafter provided, at the option of the Lead Borrower, be incurred and maintained as, and/or converted into, one or more Borrowings of Base Rate Term Loans or, subject to Section 1.15, Eurodollar or LIBO Rate Term Loans, provided that, that except as otherwise otherwise specifically provided in Section 1.10(b2.10(b), all Initial Term Loans comprising comprising the same Borrowing shall at all times be of the same Type, and (iiiiv) shall be made by each such Lender in that aggregate principal amount which does not exceed the Initial Initial2017 Additional Term Loan Commitment of such Lender on the ClosingAmendment No. 1 Effective DateDate (before giving effect to the termination thereof pursuant to Section 4.02(a)). Once repaid, Initial Term Loans incurred hereunder may not be reborrowed. All Borrowers shall be jointly and severally liable as borrowers for all Term Loans regardless of which Borrower receives the proceeds thereof.
(b) Subject to and upon the terms and conditions set forth herein, each Lender with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Effective Date and prior to the Revolving Loan Maturity Date, to make a revolving loan or revolving loans (each, a “Revolving Loan” and, collectively, the “Revolving Loans”) to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, Eurodollar Loans, provided that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed at any time in accordance with the provisions hereof, (iii) shall not exceed for any such Lender at any time outstanding that aggregate principal amount which, when added to the product of (A) such Lender’s Percentage and (B) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof.
(c) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make, at any time and from time to time after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time, and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender’s risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender’s Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to exist.
(d) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all such Lenders pro rata based on each such Lender’s Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each such Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loan.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment from time to time severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the BorrowerBorrowers, which Incremental Term Loans: Loans (1i) only may shall be incurred pursuant to a single drawing on one or more the applicable Incremental Term Loan Borrowing Dates Date, (which datesii) shall be denominated in U.S. Dollars, in any event (xiii) shall, except as hereinafter provided, at the option of the Lead Borrower, be incurred and maintained as, and/or converted into one or more Borrowings of Base Rate Term Loans or LIBO Rate Term Loans; provided that all Incremental Term Loans of a given Tranche made as part of the same Borrowing shall at all times consist of Incremental Term Loans of the same Type, and (iv) shall not be earlier than exceed for any such Incremental Term Loan Lender at any time of any incurrence thereof, the Syndication Date and Incremental Term Loan Commitment of such Incremental Term Loan Lender for such Tranche (y) shall before giving effect to the termination thereof on such date pursuant to Section 4.02(b)). Once repaid, Incremental Term Loans may not be later than the Revolving Loan Maturity Date);reborrowed.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions conditions set forth herein, each Lender Bank with an Initial Tranche B-1 Term Loan Commitment (collectively, the “Initial Tranche B-1 Term Loan Banks”) severally agrees to make on the Amendment Effective Date a term loan or term loans (each such term loan, an “Initial Tranche B-1 Term Loan” and, collectively, the “Initial Tranche B-1 Term Loans”) to the Borrower, which Initial Tranche B-1 Term Loans (i) shall be incurred pursuant to made and initially maintained as a single drawing on the Effective Date, (ii) shall, at the option Borrowing of the Borrower, be Base Rate Loans or, (subject to the option to convert such Tranche B-1 Term Loans pursuant to Section 1.15, Eurodollar Loans, 1.07); provided that, except as otherwise otherwise specifically provided in Section 1.10(b1.11(b), all Initial Tranche B-1 Term Loans comprising comprising the same Borrowing shall at all times be of the same Type, and (iiiii) shall be made by equal for each such Lender Bank, in that initial aggregate principal amount, an amount which does not exceed equals the Initial Tranche B-1 Term Loan Commitment of such Lender Bank on the Amendment Effective DateDate (before giving effect to any reductions thereto on such date pursuant to Section 3.03(a)). Once repaid, Initial Tranche B-1 Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a Second Draw Tranche B-1 Term Loan Commitment (collectively, the “Second Draw Tranche B-1 Term Loan Banks” and, together with the Initial Tranche B-1 Term Loan Banks, the “Tranche B-1 Term Loan Banks”) severally agrees to make on a Business Day on or before February 28, 2006 (such date, the “Second Draw Date”) a term loan (each such term loan, a “Second Draw Tranche B-1 Term Loan” and, collectively, the “Second Draw Tranche B-1 Term Loans” and together with the Initial Tranche B-1 Term Loans, the “Tranche B-1 Term Loans”) to the Borrower, which Second Draw Tranche B-1 Term Loans (i) shall be made and initially maintained as a single Borrowing of Base Rate Loans (subject to the option to convert such Second Draw Tranche B-1 Term Loans pursuant to Section 1.07); provided that, except as otherwise specifically provided in Section 1.11(b), all Second Draw Tranche B-1 Term Loans comprising the same Borrowing shall at all times be of the same Type, and (ii) shall equal for each Bank, in initial aggregate principal amount, an amount which equals the Second Draw Tranche B-1 Term Loan Commitment of such Bank on the Second Draw Date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)). Once repaid, Second Draw Tranche B-1 Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment (“Revolving Loan Banks”) severally agrees, at any time and from time to time on and after the Effective Date and prior to the Revolving Loan Maturity Date, to make a revolving revolving loan or revolving loans (each, a “Revolving Loan” and, collectively, the “Revolving Loans”) to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, ; provided that, that except as otherwise specifically specifically provided in Section 1.10(b1.11(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, and provided, further, that if made on the Original Effective Date or the three subsequent Business Days, as Base Rate Loans (subject to the option to convert such Revolving Loans pursuant to Section 1.07), (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, (iii) shall not exceed for any such Lender Bank at any time outstanding outstanding that aggregate principal amount which, when added to the product of (Ay) such LenderBank’s Adjusted Revolving Loan Percentage and (B) the sum of (Iz) the aggregate amount of all Letter of Credit Outstandings Outstandings plus all Swingline Loans then outstanding (exclusive of Unpaid Drawings and Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the incurrence of Revolving Loans) at such time, equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed for all Banks at any time outstanding that aggregate principal amount which, when added to the amount of all Swingline Loans then outstanding and all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds oftime, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above then in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereofeffect.
(cd) Subject to and upon the terms and conditions set forth herein, the Swingline Lender DBTCA agrees to make, make at any time and from time to time after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans to the Borrower (each each, a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower), which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstandingoutstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings relating to Letters of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans or Revolving Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time, then in effect and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender DBTCA shall not be obligated to make any Swingline Loans at a time when a Lender Bank Default exists unless the Swingline Lender DBTCA has entered into an arrangement arrangements satisfactory to it and the Borrower, Borrower to eliminate the Swingline LenderDBTCA’s risk with respect to the Lender which is the subject of each Bank’s (including any Defaulting Bank’s) participation in such Lender DefaultSwingline Loans, including by cash collateralizing the Lendercollateralizing such Defaulting Bank’s or Banks’ Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall DBTCA will not make any a Swingline Loan after it has received written notice from the Borrower or the Required Lenders Banks stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender DBTCA shall have received a written notice of (i) of rescission of all such notices notice from the party or parties originally delivering such notice, the same or (ii) of the a waiver of such Default or Event of Default by from the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to existBanks.
(de) On any Business Day, the Swingline Lender DBTCA may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments Banks and the Borrower that its all outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that each such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings a Borrowing of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all such Lenders Revolving Loan Banks pro rata based on each such LenderBank’s Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender DBTCA for such outstanding Swingline Loans. Each such Lender Revolving Loan Bank hereby irrevocably agrees to make Revolving Base Rate Loans upon one Business Day’s notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender DBTCA notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum minimum amount of each Borrowing Amount pursuant to Section 1.03 otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then existshas occurred and is continuing, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of any reduction in the Total Revolving Loan Commitment at after any such timeSwingline Loans were made. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement commencement of a proceeding under the Bankruptcy Code with in respect to of the Borrower), then each such Lender Revolving Loan Bank (other than DBTCA) hereby agrees that it shall forthwith purchase from DBTCA (as without recourse or warranty) such assignment of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders the Revolving Loan Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment pursuant to the last paragraph of Section 10), Percentages; provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender DBTCA until the date as of which the respective participation assignment is required to be purchased and, to the extent attributable to the purchased participationassignment, shall be payable to the participant Bank purchasing same from and after such date, (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loanpurchase.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions set forth herein, each Lender with an Initial Term Loan Commitment severally agrees to make a term loan or term loans (each an “Initial Term Loan” and, collectively, the “Initial Term Loans”) to the Borrower, which Initial Term Loans (i) shall be incurred pursuant to a single drawing on the Effective Date, (ii) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, Eurodollar Loans, provided that, except as otherwise specifically provided in Section 1.10(b), all Initial Term Loans comprising the same Borrowing shall at all times be of the same Type, and (iii) shall be made by each such Lender in that aggregate principal amount which does not exceed the Initial Term Loan Commitment of such Lender on the Effective Date. Once repaid, Initial Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender with a Revolving Loan Commitment Bank severally agrees:
(A) that, at on the Restatement Effective Date, each Bank's pro rata --- ---- share of $50,000,000 of Original Revolving A Loans made by such Bank and, in the case of BTCo, $5,000,000 of Original Revolving B Loans made by BTCo, in each case to the Borrower pursuant to the Original Credit Agreement and outstanding on the Restatement Effective Date shall constitute a Borrowing of term loans hereunder to the Borrower (as so constituted, the "A Term Loans", and each an "A Term Loan") in an aggregate principal amount for each such Bank as is equal to that amount set forth opposite such Bank's name on Schedule I directly below the column entitled "A Term Loans", provided, that all A -------- Term Loans made by all Banks pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of A Term Loans of the same Type. Once repaid, A Term Loans may not be reborrowed.
(B) that, on the Restatement Effective Date, the balance of the Original Revolving B Loans made by BTCo to the Borrower pursuant to the Original Credit Agreement and outstanding on the Restatement Effective Date (i.e., those Original Revolving B Loans that have not been constituted as A Term Loans pursuant to clause (A) above) shall constitute a Borrowing of term loans hereunder (as so constituted, the "B Term Loans", and each a "B Term Loan") in an aggregate principal amount for BTCo as is equal to that amount set forth opposite BTCo's name on Schedule I directly below the column entitled "B Term Loans", provided, that all B Term Loans made by all -------- Banks pursuant to the same Borrowing shall, unless otherwise specifically provided herein, consist entirely of B Term Loans of the same Type. Once repaid, B Term Loans may not be reborrowed.
(C) (x) that, on the Restatement Effective Date, the balance of the Original Revolving A Loans made by such Bank to the Borrower pursuant to the Original Credit Agreement and outstanding on the Restatement Effective Date (i.e., those Original Revolving A Loans that have not been constituted ---- as A Term Loans pursuant to clause (A) above) shall constitute a Borrowing of revolving loans hereunder to the Borrower (as so constituted, together with any time revolving loans made on or after the Restatement Effective Date pursuant to clause (y) below, the "Revolving Loans", and from time each a "Revolving Loan"), and (y) to time make on and after the Restatement Effective Date and prior to the Final Maturity Date (but after giving effect to the Revolving Loan Maturity Date, to make a revolving loan or revolving loans Loans described in the preceding clause (each, a “x)) additional Revolving Loan” and, collectively, the “Revolving Loans”) Loans to the Borrower, all of which Revolving Loans pursuant to this clause (C):
(i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, except as otherwise specifically specifically -------- provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, ;
(ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, ;
(iii) shall not exceed for any such Lender Bank at any time outstanding outstanding that aggregate principal amount which, when added to the product of (Ax) such Lender’s Bank's Adjusted Percentage and (By) the sum of (I) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender Bank at such time and time; and
(iv) shall not exceed for all Lenders Banks at any time outstanding outstanding that aggregate principal principal amount which, when added to (Ix) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (IIy) the aggregate aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof.
(cb) Subject to and upon the terms and conditions set forth herein, the Swingline Lender BTCo in its individual capacity agrees to make, make at any time and from time to time after the Restatement Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a “"Swingline Loan” " and, collectively, the “"Swingline Loans”") to the Borrower, which Swingline Loans Loans:
(i) shall be made and maintained as Base Rate Loans, ;
(ii) may be repaid and reborrowed in accordance with the provisions hereof, ;
(iii) shall not exceed in aggregate principal amount at any time outstandingoutstanding, when combined with the aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks then outstanding outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Adjusted Total Revolving Loan Commitment at such time, and time (after giving effect to any reductions to the Adjusted Total Revolving Loan Commitment on such date); and
(iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender’s risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender’s Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to exist.
(dc) On any Business Day, the Swingline Lender BTCo may, in its sole discretion, give notice to the Lenders Banks with Revolving Loan Commitments that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided -------- that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings a Borrowing of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “"Mandatory Borrowing”") shall be made on the immediately succeeding Business Day by all such Lenders Banks pro rata based on each such Lender’s Bank's --- ---- Adjusted Percentage (determined determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to BTCo to repay the Swingline Lender BTCo for such outstanding Swingline Loans. Each such Lender Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day’s 's notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender BTCo notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of the Total Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender BTCo such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders Banks to share in such Swingline Loans ratably based upon their respective Adjusted Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment Commitments pursuant to the last paragraph of Section 10); provided, provided that (x) -------- all interest payable on the Swingline Loans shall be for the account of the Swingline Lender BTCo until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender Bank shall be required to pay the Swingline Lender BTCo interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participationparticipation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loanthereafter.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
Sources: Credit Agreement (Autotote Corp)
The Commitments. (a) Subject to and upon the terms and conditions --------------- conditions set forth herein, each Lender Bank with an Initial a Term Loan Commitment severally agrees to make make, on the Initial Borrowing Date, a term loan or term loans (each an “Initial each, a "Term Loan” " and, collectively, the “Initial "Term Loans”") to the Borrower, which Initial Term Loans (i) shall be incurred pursuant to made and initially maintained as a single drawing on the Effective Date, (ii) shall, at the option Borrowing of the Borrower, be Base Rate Loans or, (subject to Section 1.15, Eurodollar Loans, provided that, except as otherwise specifically provided in Section 1.10(b), all Initial the option to convert such Term Loans comprising the same Borrowing shall at all times be of the same Type, pursuant to Section 1.06) and (iiiii) shall be made by each such Lender Bank in that initial aggregate principal amount which does not exceed as is equal to the Initial Term Loan Commitment of such Lender Bank on the Effective Datesuch date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)). Once repaid, Initial Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Revolving Loan Maturity Date, to make a revolving revolving loan or revolving loans (each, a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, that (A) except as otherwise specifically specifically -------- provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same TypeType and (B) prior to the earlier of (1) the 65th day after the Initial Borrowing Date and (2) the Syndication Date, Revolving Loans may only be incurred as Eurodollar Loans if the respective Interest Period applicable thereto is a one month Interest Period which begins and ends on the same date as the Interest Period applicable to one of the two Borrowings specified in Section 1.06(b)(x), (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, (iii) shall not exceed for any such Lender Bank at any time outstanding outstanding that aggregate principal amount which, when added to the product of (Ax) such Lender’s Bank's Percentage and (By) the sum of (I) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective respective incurrence of Revolving Loans) then outstanding, equals the Available Revolving Loan Commitment of such Lender Bank at such time and (iv) shall not exceed for all Lenders Banks at any time outstanding outstanding that aggregate principal principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Available Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof.
(c) Subject to and upon the terms and conditions set forth herein, the Swingline Lender Bank in its individual capacity agrees to make, make at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Swingline Expiry Expiration Date, a revolving loan or revolving loans (each each, a “"Swingline Loan” " and, collectively, the “"Swingline Loans”") to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstandingoutstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Available Revolving Loan Commitment at such time, and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) Amount and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (iv) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when extended if the entire principal amount Swingline Bank receives a written notice from any Agent or the Required Banks that has not been rescinded that there is a Default or an Event of all outstanding Senior Subordinated Notes has been indefeasibly repaid Default in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereofexistence hereunder. The Swingline Lender Bank shall not be obligated to make any Swingline Loans at a any time when a Lender Bank Default exists unless the Swingline Lender Bank has entered into an arrangement arrangements satisfactory to it and the Borrower, to eliminate the Swingline Lender’s Bank's risk with respect to the Lender which is the subject of Defaulting Bank's or Banks' participation in such Lender DefaultSwingline Loans, including by cash collateralizing the Lender’s collateralizing such Defaulting Bank's or Banks' Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to exist.
(d) On any Business Day, the Swingline Lender Bank may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments other Banks that its the Swingline Bank's outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided -------- that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings a Borrowing of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “"Mandatory Borrowing”") shall be made on the immediately succeeding Business Day by all such Lenders Banks with a Revolving Loan Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 10) pro rata based on each such Lender’s Bank's Percentage (determined determined before --- ---- giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to the Swingline Bank to repay the Swingline Lender Bank for such outstanding Swingline Loans. Each such Lender Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day’s 's notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the immediately preceding sentence and on the date specified in writing by the Swingline Lender Bank notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of the Total Available Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment Commitments pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the -------- Swingline Loans shall be for the account of the Swingline Lender Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender Bank shall be required to pay the Swingline Lender Bank interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participationparticipation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loanthereafter.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions --------------- conditions set forth herein, each Lender Bank with an Initial a Term Loan Commitment severally agrees to make make, on the Initial Borrowing Date and on the DVI Payment Date (so long as the DVI Payment Date occurs prior to the Term Loan Commitment Termination Date), a term loan or term loans (each an “Initial each, a "Term Loan” " and, collectively, the “Initial "Term Loans”") to the Borrower, which Initial Term Loans (i) shall be incurred pursuant to a single drawing on the Effective Date, (ii) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, ; provided that, that (x) except as otherwise otherwise specifically provided in -------- Section 1.10(b), all Initial Term Loans comprising comprising the same Borrowing shall at all times be of the same Type, Type and (iiiy) no Eurodollar Loans may be incurred prior to the Syndication Termination Date and (ii) shall be made by each such Lender not exceed for any Bank, in that initial aggregate principal amount, that amount which does not exceed equals the Initial Term Loan Commitment of such Lender Bank on such date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)(i), 3.03(b)(iii) and 3.03(b)(v) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(b)(ii) and 3.03(b)(iv)) less such Bank's Term Loan Commitment Percentage of the Effective DateBlocked Commitment; provided, -------- however that Term Loans made after the Initial Borrowing Date shall be made from ------- the Blocked Commitment for each Bank and shall be in an amount equal to such Bank's Term Loan Commitment Percentage of the Blocked Commitment. Once repaid, Initial Term Loans incurred hereunder may not be reborrowed. In addition, on the Restatement Effective Date, the Borrower and Banque Paribas agree that $2 million of the Acquisition Loans which had been made pursuant to the Original Credit Agreement prior to the Restatement Effective Date shall be deemed automatically converted into an additional Borrowing of Term Loans.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a Revolving an Acquisition Loan Commitment severally agreesagrees to make, at any time and from time to time on and after the Acquisition Loan Commencement Date and prior to the Acquisition Loan Termination Date, a loan or loans (each an "Acquisition Loan" and, collectively, the "Acquisition Loans") to the Borrower, which Acquisition Loans (i) shall, at the option of the Borrower, be Base Rate Loans or Eurodollar Loans; provided that (x) except as otherwise specifically -------- provided in Section 1.10(b), all Acquisition Loans comprising the same Borrowing shall at all times be of the same Type and (y) no Eurodollar Loans may be incurred prior to the Syndication Termination Date and (ii) shall not exceed for any Bank, in initial aggregate principal amount, that amount which equals the Acquisition Loan Commitment of such Bank at such time (before giving effect to any reductions thereto on such date pursuant to Section 3.03(c)(i) or Section 3.03(c)(ii) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(c)(iii)). Once repaid, Acquisition Loans incurred may not be reborrowed; provided, however that the $2 million of -------- ------- Acquisition Loans converted to Term Loans or Revolving Loans in accordance with the next succeeding sentence and any Acquisition Loans repaid in accordance with Section 4.02(A)(e)(i) from the proceeds of the initial public offering of common equity of Holdings shall be permitted to be reborrowed. After giving effect to the conversion of $2 million of the Acquisition Loans to Term Loans in accordance with Section 1.01(a) on the Restatement Effective Date, Acquisition Loans in an amount set forth on Part B of Schedule I shall be outstanding on the Restatement Effective Date. No Acquisition Loans may be incurred on the Restatement Effective Date.
(c) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment severally agrees at any time and from time to time after the Initial Borrowing Date and prior to the Revolving Loan Maturity Date, to make a revolving loan or revolving loans (each, each a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, ; provided that, that (x) except as otherwise specifically specifically provided in Section 1.10(b), -------- all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, Type and (iiy) no Eurodollar Loans may be repaid and reborrowed at any time in accordance with the provisions hereof, (iii) shall not exceed for any such Lender at any time outstanding that aggregate principal amount which, when added to the product of (A) such Lender’s Percentage and (B) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof.
(c) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make, at any time and from time to time after the Effective Date and prior to the Swingline Expiry Syndication Termination Date, a revolving loan or revolving loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in for any Bank at any time outstanding that aggregate principal amount at any time outstandingwhich, when combined with added to the product of (x) such Bank's Percentage and (y) the sum of (I) the aggregate principal amount of all Revolving Loans then outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Revolving Loans) and (II) the aggregate principal amount of all Swingline Loans then outstanding (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans), equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed for all Banks at any time that aggregate principal amount which, when added to the aggregate principal amount of all Swingline Loans then outstanding and the aggregate amount of all Letter of Credit Outstandings at such time, equals the Borrowing Base at such time.
(d) Subject to and upon the terms and conditions herein set forth, the Swingline Bank agrees to make at any time and from time to time after the Initial Borrowing Date and prior to the Swingline Expiry Date, a loan or loans to the Borrower (each a "Swingline Loan," and collectively, the "Swingline Loans"), which Swingline Loans (i) shall be made and maintained as Base Rate Loans; (ii) may be repaid and reborrowed in accordance with the provisions hereof; (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of (x) all Revolving Loans then outstanding and (y) all Letter of Credit Outstandings at such time (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans), an amount equal to the lesser of (A) the Total Revolving Loan Commitment at such time (after giving effect to any reductions to the Total Revolving Loan Commitment on such date) and (B) the Borrowing Base at such time, ; and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender Bank shall not be obligated to make any Swingline Loans at a time when a Lender Bank Default exists unless the Swingline Lender Bank has entered into an arrangement arrangements satisfactory to it and the Borrower, Borrower to eliminate the Swingline Lender’s Bank's risk with respect to the Lender which is the subject of Defaulting Bank's or Banks' participation in such Lender DefaultSwingline Loans, including by cash collateralizing the Lender’s collateralizing such Defaulting Bank's or Banks' Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the The Swingline Lender Bank shall not make any Swingline Loan after it has received receiving a written notice from the Borrower or the Required Lenders Banks stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender Bank shall have received written notice of (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or Banks, (Biii) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to existexist or (iv) the consent of the Required Banks to make Swingline Loans notwithstanding the existence of such Default or Event of Default.
(de) On any Business Day, the Swingline Lender Bank may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (Loans, provided that such notice shall be deemed to have -------- been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings a Borrowing of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “"Mandatory Borrowing”") shall be made on the immediately succeeding Business Day by from all such Lenders Banks with a Revolving Loan Commitment (without giving effect to any terminations and/or reductions thereto pursuant to the last paragraph of Section 10) pro rata based on each such Lender’s Percentage the --- ---- basis of their respective Percentages (determined determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to the Swingline Bank to repay the Swingline Lender Bank for such outstanding Swingline Loans. Each such Lender Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day’s 's notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender Bank notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of any reduction in the Total Revolving Loan Commitment at after any such timeSwingline Loans were made. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender Bank (without recourse or warranty) such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment Commitments pursuant to the last paragraph para graph of Section 10), ; provided that (x) all interest payable on the Swingline Loans shall -------- be for the account of the Swingline Lender Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender Bank shall be required to pay the Swingline Lender Bank interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participationparticipation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable applicable to Revolving Loans maintained as Base Rate Loans hereunder here under for each day thereafter thereafter.
(i) Each New Bank shall purchase by assignment and assumption from Banque Paribas on the Restatement Effective Date (z) whenever the Swingline Lender receives a payment without recourse to, representation or warranty by (other than as expressly provided in respect of a Swingline Loan in which such a participation has been purchasedthis Section 1.01(f)), the Swingline Lender shall pay Banque Paribas), outstanding Loans made by Banque Paribas to the Lenders which acquired Borrower pursuant to the Original Credit Agreement, with each New Bank to purchase Loans in an aggregate principal amount so that after giving effect to all such participation assignments the outstanding principal amount of Loans of each Bank under each facility shall be as set forth on Part B of Schedule I. Each of the Banks hereby further agree that such assignments shall be effected on the Restatement Effective Date as a result of the New Banks making to Agents for the account of Banque Paribas payments in an amount equal to the total outstanding amount of Loans of such Lenders’ share in such Swingline Loan.Bank as set forth on Part B of Schedule I.
(eii) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) on the Restatement Effective Date all accrued (but theretofore unpaid) interest with respect to all outstanding Loans under the Original Credit Agreement immediately prior to the Restatement Effective Date shall not be earlier than paid by the Syndication Date Borrower and (y) all Fees under, and as defined in, the Original Credit Agreement (including, without limitation, Commitment Commissions (as defined in the Original Credit Agreement)) accrued prior to the Restatement Effective Date shall not be later than paid on the Revolving Loan Maturity Date);Restatement Effective Date by the Borrower.
(iii) Banque Paribas hereby represents and warrants to each New Bank purchasing Loans from Banque Paribas by way of assignment pursuant to this Section that it is the legal and beneficial owner of such Loans being assigned by it under this Section to such New Bank and that such Loans are free and clear of any adverse claim with respect to its legal and beneficial ownership thereof.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions conditions set forth herein, each Lender Bank with an Initial a Tranche A Term Loan Commitment severally agrees to make on the Effective Date a term loan or term loans (each an “Initial such term loan, a "Tranche A Term Loan” " and, collectively, the “Initial "Tranche A Term Loans”") to the Borrower, which Initial Tranche A Term Loans (i) shall be incurred pursuant to made and initially maintained as a single drawing on the Effective Date, (ii) shall, at the option Borrowing of the Borrower, be Base Rate Loans or, (subject to the option to convert such Tranche A Term Loans pursuant to Section 1.15, Eurodollar Loans, 1.07); provided that, except as otherwise otherwise specifically provided in Section 1.10(b1.11(b), all Initial Tranche A Term Loans comprising comprising the same Borrowing shall at all times be of the same Type, and (iiiii) shall be made by equal for each such Lender Bank, in that initial aggregate principal amount, an amount which does not exceed equals the Initial Tranche A Term Loan Commitment of such Lender Bank on the Effective DateDate (before giving effect to any reductions thereto on such date pursuant to Section 3.03(a)). Once repaid, Initial Tranche A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a Tranche B Term Loan Commitment severally agrees to make on the Effective Date a term loan (each such term loan, a "Tranche B Term Loan" and, collectively, the "Tranche B Term Loans") to the Borrower, which Tranche B Term Loans (i) shall be made and initially maintained as a single Borrowing of Base Rate Loans (subject to the option to convert such Tranche B Term Loans pursuant to Section 1.07); provided that, except as otherwise specifically provided in Section 1.11(b), all Tranche B Term Loans comprising the same Borrowing shall at all times be of the same Type, and (ii) shall equal for each Bank, in initial aggregate principal amount, an amount which equals the Tranche B Term Loan Commitment of such Bank on the Effective Date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)). Once repaid, Tranche B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment ("Revolving Loan Banks") severally agrees, at any time and from time to time on and after the Effective Date and prior to the Revolving Loan Maturity Date, to make a revolving revolving loan or revolving loans (each, a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, ; provided that, that except as otherwise specifically specifically provided in Section 1.10(b1.11(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, and provided further that if made on the Effective Date or the three subsequent Business Days, as Base Rate Loans (subject to the option to convert such Revolving Loans pursuant to Section 1.07), (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, (iii) shall not exceed for any such Lender Bank at any time outstanding outstanding that aggregate principal amount which, when added to the product of (Ay) such Lender’s Bank's Adjusted Percentage and (B) the sum of (Iz) the aggregate amount of all Letter of Credit Outstandings Outstandings plus all Swingline Loans then outstanding (exclusive of Unpaid Drawings and Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the incurrence of Revolving Loans) at such time, equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed for all Banks at any time outstanding that aggregate principal amount which, when added to the amount of all Swingline Loans then outstanding and all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds oftime, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above then in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereofeffect.
(cd) Subject to and upon the terms and conditions set forth herein, the Swingline Lender BTCo agrees to make, make at any time and from time to time on and after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans to the Borrower (each each, a “"Swingline Loan” " and, collectively, the “"Swingline Loans”) to the Borrower"), which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstandingoutstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings relating to Letters of Credit which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans or Revolving Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time, then in effect and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender BTCo shall not be obligated to make any Swingline Loans at a time when a Lender Bank Default exists unless the Swingline Lender BTCo has entered into an arrangement arrangements satisfactory to it and the Borrower, Borrower to eliminate the Swingline Lender’s BTCo's risk with respect to the Lender which is the subject of each Bank's (including any Defaulting Bank's) participation in such Lender DefaultSwingline Loans, including by cash collateralizing the Lender’s collateralizing such Defaulting Bank's or Banks' Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall BTCo will not make any a Swingline Loan after it has received written notice from the Borrower or the Required Lenders Banks stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender BTCo shall have received a written notice of (i) of rescission of all such notices notice from the party or parties originally delivering such notice, the same or (ii) of the a waiver of such Default or Event of Default by from the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to existBanks.
(de) On any Business Day, the Swingline Lender BTCo may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments Banks and the Borrower that its all outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that each such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings a Borrowing of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “"Mandatory Borrowing”") shall be made on the immediately succeeding Business Day by all such Lenders Revolving Loan Banks pro rata based on each such Lender’s Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) Bank's Percentage, and the proceeds thereof shall be applied directly to repay the Swingline Lender BTCo for such outstanding Swingline Loans. Each such Lender Revolving Loan Bank hereby irrevocably agrees to make Revolving Base Rate Loans upon one Business Day’s 's notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender BTCo notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum minimum amount of each Borrowing Amount pursuant to Section 1.03 otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then existshas occurred and is continuing, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of any reduction in the Total Revolving Loan Commitment at after any such timeSwingline Loans were made. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement commencement of a proceeding under the Bankruptcy Code with in respect to of the Borrower), then each such Lender Revolving Loan Bank (other than BTCo) hereby agrees that it shall forthwith purchase from BTCo (as without recourse or warranty) such assignment of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders the Revolving Loan Banks to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment pursuant to the last paragraph of Section 10), Percentages; provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender BTCo until the date as of which the respective participation assignment is required to be purchased and, to the extent attributable to the purchased participationassignment, shall be payable to the participant Bank purchasing same from and after such date, (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loanpurchase.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
Sources: Credit Agreement (Coinmach Corp)
The Commitments. (a) (i) On the Closing Date, certain Lenders made Initial Term Loans to the Borrowers, which Initial Term Loans (i) were incurred by the Borrowers pursuant to a single drawing on the Closing Date, (ii) were denominated in U.S. Dollars, (iii) were and shall be, except as hereinafter provided, at the option of the Lead Borrower, incurred and maintained as, and/or converted into, one or more Borrowings of Base Rate Term Loans or LIBO Rate Term Loans, provided that except as otherwise specifically provided in Section 2.10(b), all Initial Term Loans comprising the same Borrowing shall at all times be of the same Type.
(a) Subject to and upon the terms and conditions conditions set forth herein, and in Amendment No. 1, each Lender with an Initial Term Loan Commitment severally agrees to make a term loan or term loans (each an “Initial Term Loan” and, collectively, the “Loan or Initial Term Loans”) Loans to the BorrowerBorrowers, which Initial Term Loans (i) shall be incurred by the Borrowers pursuant to a single drawing on the ClosingAmendment No. 1 Effective Date, (ii) shallshall be denominated in U.S. Dollars, (iii) shall except as hereinafter provided, at the option of the Lead Borrower, be incurred and maintained as, and/or converted into, one or more Borrowings of Base Rate Term Loans or, subject to Section 1.15, Eurodollar or LIBO Rate Term Loans, provided that, that except as otherwise otherwise specifically provided in Section 1.10(b2.10(b), all Initial Term Loans comprising comprising the same Borrowing shall at all times be of the same Type, and (iiiiv) shall be made by each such Lender in that aggregate principal amount which does not exceed the Initial Initial2017 Additional Term Loan Commitment of such Lender on the ClosingAmendment No. 1 Effective DateDate (before giving effect to the termination thereof pursuant to Section 4.02(a)). Once repaid, Initial Term Loans incurred hereunder may not be reborrowed. All Borrowers shall be jointly and severally liable as borrowers for all Term Loans regardless of which Borrower receives the proceeds thereof.
(b) Subject to and upon the terms and conditions set forth herein, each Lender with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Effective Date and prior to the Revolving Loan Maturity Date, to make a revolving loan or revolving loans (each, a “Revolving Loan” and, collectively, the “Revolving Loans”) to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, Eurodollar Loans, provided that, except as otherwise specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed at any time in accordance with the provisions hereof, (iii) shall not exceed for any such Lender at any time outstanding that aggregate principal amount which, when added to the product of (A) such Lender’s Percentage and (B) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof.
(c) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to make, at any time and from time to time after the Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each a “Swingline Loan” and, collectively, the “Swingline Loans”) to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstanding, when combined with the aggregate principal amount of all Revolving Loans then outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Total Revolving Loan Commitment at such time, and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender’s risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender’s Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to exist.
(d) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all such Lenders pro rata based on each such Lender’s Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each such Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loan.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment from time to time severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the BorrowerBorrowers, which Incremental Term Loans: Loans (1i) only may shall be incurred pursuant to a single drawing on one or more the applicable Incremental Term Loan Borrowing Dates Date, (which datesii) shall be denominated in U.S. Dollars, in any event (xiii) shall, except as hereinafter provided, at the option of the Lead Borrower, be incurred and maintained as, and/or converted into one or more Borrowings of Base Rate Term Loans or LIBO Rate Term Loans; provided that all Incremental Term Loans of a given Tranche made as part of the same Borrowing shall at all times consist of Incremental Term Loans of the same Type, and (iv) shall not be earlier than exceed for any such Incremental Term Loan Lender at any time of any incurrence thereof, the Syndication Date and Incremental Term Loan Commitment of such Incremental Term Loan Lender for such Tranche (y) shall before giving effect to the termination thereof on such date pursuant to Section 4.02(b)). Once repaid, Incremental Term Loans may not be later than the Revolving Loan Maturity Date);reborrowed.
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions conditions set forth hereinin the Existing Credit Agreement, each Lender Existing Bank with an Initial a Term Loan Commitment pursuant to the Existing Credit Agreement severally agrees agreed to make make, on the Third Restatement Effective Date, a term loan or term loans (each an “Initial a "Term Loan” and, collectively, " and collectively the “Initial "Term Loans”") to the BorrowerBorrowers, which Initial Term Loans (i) shall be incurred pursuant to a single drawing are outstanding on the Fourth Restatement Effective DateDate in the principal amounts for the various Banks as set forth opposite their names under the heading "Outstanding Principal Amount of Term Loans" in Schedule I hereto, (ii) shall, at the option of the BorrowerBorrowers, be maintained as Base Rate Loans or, subject or Eurodollar Loans (with any Interest Periods applicable thereto immediately before the occurrence of the Fourth Restatement Effective Date to Section 1.15, Eurodollar Loanscontinue to be applicable thereto until the expiration thereof), provided that, that except as otherwise otherwise specifically provided in Section 1.10(b), all Initial Term Loans comprising comprising the same Borrowing shall at all times be of the same Type, Type and (iii) shall be made by constitute joint and several obligations of each such Lender in that of the Borrowers. The aggregate outstanding principal amount which does not exceed of Term Loans of each Bank, as at the Initial date provided in Schedule I, is accurately set forth in Schedule I. The Term Loan Commitment Loans of such Lender on each Bank outstanding immediately prior to the Fourth Restatement Effective Date shall remain outstanding after giving effect to the occurrence of the Fourth Restatement Effective Date, and shall in no way be affected as a result of the occurrence of the Fourth Restatement Effective Date. Once repaid, Initial Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender with a Revolving Loan Commitment Bank severally agrees, at any time and from time to time on and after the Third Restatement Effective Date and prior to the Revolving Loan Maturity Date, to make a revolving revolving loan or revolving loans (each, a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the BorrowerBorrowers, which Revolving Loans (i) shall, at the option of the BorrowerBorrowers, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, that except as otherwise specifically specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, (iii) shall not exceed for any such Lender Bank at any time outstanding outstanding that aggregate principal amount which, when added to the product of (Ax) such Lender’s Bank's Adjusted Percentage and (By) the sum of (I) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender Bank at such time and time, (iv) shall not exceed for all Lenders Banks at any time outstanding outstanding that aggregate principal principal amount which, when added to (Ix) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (IIy) the aggregate aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to and (v) shall be the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if joint and several obligations of each of the Borrowers. On and immediately after giving effect to the incurrence thereofoccurrence of the Fourth Restatement Effective Date, the Revolving Exposure would exceed $150,000,000 unless Loan Commitment for each Bank shall be the amount set forth opposite such Bank's name in Schedule I hereto directly below the column entitled "Revolving Loan Commitment" (ias same may be (x) the Senior Subordinated Note Borrowing Base after giving effect reduced from time to time pursuant to Sections 3.02, 3.03, 4.02 and/or 10 or (y) adjusted from time to time as a result of assignments to or from such incurrence of Revolving Loans equals Bank pursuant to Section 1.13 or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans13.04(b)), (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount Total Revolving Loan Commitment (as of the Fourth Restatement Effective Date) shall represent an increase of $125,000,000 over the Total Revolving Loan Commitment as in effect immediately before the occurrence of the Fourth Restatement Effective Date. In connection with such increase, on the Fourth Restatement Effective Date the Borrowers shall repay in full all Revolving Loans to then outstanding (although Revolving Loans may be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to hereunder on the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated Fourth Restatement Effective Date in accordance with the terms thereofprovisions hereof, so that the Banks participate in each Borrowing of outstanding Revolving Loans pro rata on the basis of their Revolving Loan Commitments (as in effect on the Fourth Restatement Effective Date) as provided herein), it being understood and agreed that the Borrowers shall jointly and severally pay all breakage or similar costs of the type described in Section 1.11 incurred by the Banks in connection with any repayment or reborrowing of Revolving Loans.
(c) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Lender BTCo in its individual capacity agrees to make, make at any time and from time to time on and after the Third Restatement Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a “"Swingline Loan” " and, collectively, the “"Swingline Loans”") to the BorrowerBorrowers, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstandingoutstanding, when combined with the aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks then outstanding outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Adjusted Total Revolving Loan Commitment at such timetime (after giving effect to any reductions to the Adjusted Total Revolving Loan Commitment on such date), and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) Amount and (iv), in no event v) shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence joint and several obligations of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time each of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender’s risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender’s Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to existBorrowers.
(d) On any Business Day, the Swingline Lender BTCo may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings a Borrowing of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “"Mandatory Borrowing”") shall be made on the immediately succeeding Business Day by all such Lenders Banks with a Revolving Loan Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 10) pro rata based on each such Lender’s Bank's Adjusted Percentage (determined determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to BTCo to repay the Swingline Lender BTCo for such outstanding Swingline Loans. Each such Lender Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day’s 's notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender BTCo notwithstanding that (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of the Total Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at such time; provided that, in no event shall such Bank be required to make Revolving Loans in excess of such Bank's Revolving Loan Commitment. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement commencement of a proceeding under the Bankruptcy Code with respect to any of the BorrowerBorrowers), then each such Lender Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower Borrowers on or after such date and prior to such purchase) from the Swingline Lender BTCo such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders Banks to share in such Swingline Loans ratably based upon their respective Adjusted Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment Commitments pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender BTCo until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender Bank shall be required to pay the Swingline Lender BTCo interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participationparticipation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loanthereafter.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
Sources: Credit Agreement (Furniture Brands International Inc)
The Commitments. (aA) Subject to and upon the terms and conditions --------------- conditions set forth herein, each Lender Bank with an Initial Term Loan Commitment severally agrees to make make, on the Effective Date, a term loan or term loans (each such term loan, an “"Initial Term Loan” " and, collectively, the “"Initial Term Loans”") to the Borrower, which Initial Term Loans (i) shall be incurred pursuant to a single drawing on the Effective Date, (ii) shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, except as otherwise otherwise specifically -------- provided in Section 1.10(b), all Initial Term Loans comprising comprising the same Borrowing shall at all times be of the same Type, and (iiiii) shall not exceed for any such Bank, in initial principal amount, that amount which equals the Initial Term Loan Commitment of such Bank on such date (before giving effect to the termination thereof on such date pursuant to Section 2.03(b)).
(B) Subject to and upon the terms and conditions set forth herein, each Bank with an Additional Term Loan Commitment severally agrees to make, on each Additional Term Loan Borrowing Date, a term loan or term loans (each such term loan, an "Additional Term Loan" and, collectively, the "Additional Term Loans") to the Borrower, which Additional Term Loans (i) shall be made as provided in Section 1.14 and (ii) shall be made by each such Lender Bank in that aggregate principal amount which does not exceed equals the Initial Additional Term Loan Commitment of such Lender Bank on each such date (before giving effect to the Effective Datetermination thereof on each such date pursuant to Section 2.03(c)). Once repaid, Initial Term Loans incurred hereunder (including any Term Loans made pursuant to Section 1.01(c)) may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Effective Date and prior to the Revolving Loan Maturity Revolver Conversion Date, to make a revolving revolving loan or revolving loans (each, a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be incurred and maintained as, and/or converted into, Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, -------- except as otherwise specifically specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same Type, (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, (iii) shall not exceed for any such Lender Bank at any time outstanding outstanding that aggregate principal amount which, when added to the product of (A) such Lender’s Percentage and (B) the sum of (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender Bank at such time and (iv) shall not exceed for all Lenders such Banks at any time outstanding outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof.
(c) Subject to and upon the terms and conditions set forth herein, the Swingline Lender agrees to makeBorrower and each Bank with a Revolving Loan Commitment agree that, at any time and from time to time after 9:00 A.M. (New York time) on the Effective Revolver Conversion Date and prior so long as the Final Maturity Date has been extended pursuant to the Swingline Expiry Date, a revolving loan or revolving loans (each a “Swingline Loan” and, collectivelySection 1.15, the “Swingline Loans”aggregate principal amount of Revolving Loans owing to such Bank and outstanding at such time shall (unless such Revolving Loans have been declared (or have become) due and payable pursuant to the Borrowerthis Agreement), which Swingline without any notice or action by any party hereto, automatically convert to and thereafter constitute Term Loans (i) shall be owing to such Bank hereunder. The Term Loans of any such Bank made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iiipursuant to this Section 1.01(c) shall not exceed in aggregate initial principal amount at for any time outstanding, when combined with such Bank that amount which equals the aggregate principal amount of all Revolving Loans then outstanding owed to such Bank and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously outstanding immediately prior to such conversion. In connection with the incurrence ofof Term Loans pursuant to this Section 1.01(c), the respective incurrence of Swingline Loans) at such timeBanks hereby agree that, an amount equal to the Total Revolving Loan Commitment at such time, and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses this Agreement, the Borrower and the Administrative Agent shall take all such actions as may be necessary to ensure that all Banks with outstanding Term Loans (iiiincluding Term Loans made pursuant to this Section 1.01(c)) and participate in each Borrowing of outstanding Term Loans on a pro rata basis (iv), in no event shall any Swingline including by having the --- ---- Term Loans be permitted to be incurred pursuant to this Agreement if after giving effect Section 1.01(c) spread out over the then outstanding Borrowings of Term Loans on a pro rata basis even though as a result --- ---- thereof the new Term Loans incurred pursuant to this Section 1.01(c) may effectively have a shorter Interest Period than the then existing Term Loans), and it is hereby agreed that to the incurrence thereof extent the Revolving Exposure would exceed $150,000,000 unless (iTerm Loans that are incurred pursuant to this Section 1.01(c) are spread out over the Senior Subordinated Note Borrowing Base after giving effect to such incurrence then outstanding Borrowings of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Term Loans, (iithe Banks that have made such Term Loans pursuant to this Section 1.01(c) at shall be entitled to receive an effective interest rate on such Term Loans equal to the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained Eurodollar Rate as in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect two Business Days prior to the incurrence of such Swingline Loans, Term Loans plus the Interest Coverage Ratio (as defined in, and calculated in accordance with, then Applicable Margin until the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender’s risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender’s Percentage end of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to existthen respective current Interest Periods.
(d) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments that its outstanding Swingline Loans shall be funded with one or more Borrowings of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings of Revolving Loans constituting Base Rate Loans (each such Borrowing, a “Mandatory Borrowing”) shall be made on the immediately succeeding Business Day by all such Lenders pro rata based on each such Lender’s Percentage (determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to repay the Swingline Lender for such outstanding Swingline Loans. Each such Lender hereby irrevocably agrees to make Revolving Loans upon one Business Day’s notice pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender notwithstanding (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount otherwise required hereunder, (ii) whether any conditions specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing and (v) the amount of the Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders to share in such Swingline Loans ratably based upon their respective Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender shall be required to pay the Swingline Lender interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loan.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract
The Commitments. (a) Subject to and upon the terms and conditions conditions set forth herein, each Lender Bank with an Initial A Term Loan Commitment severally agrees agrees, (A) in the case of each Continuing Bank, to convert into A Term Loans (as hereinafter defined), on the Restatement Effective Date, Original Term Loans made by such Continuing Bank pursuant to the Original Credit Agreement and outstanding on the Restatement Effective Date in an aggregate principal amount equal to the lesser of (x) the aggregate principal amount of such Original Term Loans made by such Continuing Bank and so outstanding or (y) such Continuing Bank's A Percentage (immediately after giving effect to the occurrence of the Restatement Effective Date) of the aggregate principal amount of Original Term Loans made by all Original Banks and outstanding on the Restatement Effective Date and/or (B) to make on the Restatement Effective Date a term loan or term loans (each each, an “Initial "A Term Loan” " and, collectively, the “Initial "A Term Loans”") to the BorrowerBorrowers, which Initial A Term Loans (i) shall be incurred pursuant to a single drawing on the Effective Date, (ii) shall, at the option of the BorrowerBorrowers, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, that (A) except as otherwise otherwise specifically provided in Section 1.10(b), all Initial Term Loans comprising comprising the same Borrowing shall at all times be of the same TypeType and (B) no more than two Borrowings of A Term Loans to be maintained as Eurodollar Loans may be incurred or maintained prior to the 60th day after the Restatement Effective Date or, if later, the last day of the Interest Period applicable to the second Borrowing of Eurodollar Loans referred to in the succeeding parenthetical (each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, and the first of which Borrowings may only be made on a single date, on or after the Restatement Effective Date and on or prior to the fourth Business Day following the Restatement Effective Date and the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing), (ii) shall equal for each Bank, in initial aggregate principal amount, an amount (which, in the case of each Continuing Bank, shall include the principal amount of Loans converted pursuant to clause (A) above) which equals the A Term Loan Commitment of such Bank on the Restatement Effective Date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)(i) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(b)(ii)) and (iii) shall be made by joint and several obligations of each such Lender in that aggregate principal amount which does not exceed of the Initial Term Loan Commitment of such Lender on the Effective DateBorrowers. Once repaid, Initial A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a B Term Loan Commitment severally agrees to make on the Restatement Effective Date a term loan (each, a "B Term Loan" and, collectively, the "B Term Loans") to the Borrowers, which B Term Loans (i) shall, at the option of the Borrowers, be Base Rate Loans or Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Term Loans comprising the same Borrowing shall at all times be of the same Type and (B) no more than two Borrowings of B Term Loans to be maintained as Eurodollar Loans may be incurred prior to the 60th day after the Restatement Effective Date or, if later, the last day of the Interest Period applicable to the second Borrowing of Eurodollar Loans referred to in the succeeding parenthetical (each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, and the first of which Borrowings may only be made on the same date as the initial Borrowing of A Term Loans that are maintained as Eurodollar Loans and the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing), (ii) shall equal for each Bank, in initial aggregate principal amount, that amount which equals the B Term Loan Commitment of such Bank on the Restatement Effective Date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(c)(i) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(c)(ii)) and (iii) shall be joint and several obligations of each of the Borrowers. Once repaid, B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each Bank with a C Term Loan Commitment severally agrees to make on the Restatement Effective Date a term loan (each, a "C Term Loan" and, collectively, the "C Term Loans") to the Borrowers, which C Term Loans (i) shall, at the option of the Borrowers, be Base Rate Loans or Eurodollar Loans, provided that (A) except as otherwise specifically provided in Section 1.10(b), all Term Loans comprising the same Borrowing shall at all times be of the same Type and (B) no more than two Borrowings of C Term Loans to be maintained as Eurodollar Loans may be incurred prior to the 60th day after the Restatement Effective Date or, if later, the last day of the Interest Period applicable to the second Borrowing of Eurodollar Loans referred to in the succeeding parenthetical (each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, and the first of which Borrowings may only be made on the same date as the initial Borrowing of A Term Loans incurred on or after the Restatement Effective Date that are maintained as Eurodollar Loans and the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing), (ii) shall equal for each Bank, in initial aggregate principal amount, that amount which equals the C Term Loan Commitment of such Bank on the Restatement Effective Date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(d)(i) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(d)(ii)) and (iii) shall be joint and several obligations of each of the Borrowers. Once repaid, C Term Loans incurred hereunder may not be reborrowed.
(d) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Restatement Effective Date and prior to the Revolving Loan Maturity Date, to make a revolving revolving loan or revolving loans (each, a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the BorrowerBorrowers, which Revolving Loans (i) shall, at the option of the BorrowerBorrowers, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, that (A) except as otherwise specifically specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same TypeType and (B) no more than two Borrowings of Revolving Loans to be maintained as Eurodollar Loans may be incurred prior to the 60th day after the Restatement Effective Date or, if later, the last day of the Interest Period applicable to the second Borrowing of Eurodollar Loans referred to in the succeeding parenthetical (each of which Borrowings of Eurodollar Loans may only have an Interest Period of one month, and the first of which Borrowings may only be made on the same date as the initial Borrowing of A Term Loans incurred on or after the Restatement Effective Date that are maintained as Eurodollar Loans and the second of which Borrowings may only be made on the last day of the Interest Period of the first such Borrowing), (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, (iii) shall not exceed for any such Lender Bank at any time outstanding outstanding that aggregate principal amount which, when added to the product of (Ax) such Lender’s Bank's Adjusted Percentage and (By) the sum of (I) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultan- eously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank at such time, (iv) shall not exceed for all Banks at any time out- standing that aggregate principal amount which, when added to (x) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (Iy) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything (v) shall not exceed in aggregate principal amount on the Restatement Effective Date, when added to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the aggregate principal amount of Swingline Loans incurred on such Revolving Loans date, an amount equal to $75,000,000 and (vi) shall be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence joint and several obligations of such Revolving Loans, each of the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereofBorrowers.
(ce) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Lender BTCo in its individual capacity agrees to make, make at any time and from time to time on and after the Restatement Effective Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a “"Swingline Loan” " and, collectively, the “"Swingline Loans”") to the BorrowerBorrowers, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal prin- cipal amount at any time outstandingoutstanding, when combined with the aggregate principal amount of all Revolving Loans made by Non- Defaulting Banks then outstanding outstanding and the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, an amount equal to the Adjusted Total Revolving Loan Commitment at such timetime (after giving effect to any reductions to the Adjusted Total Revolving Loan Commitment on such date), and (iv) shall not exceed at any time outstanding the Maximum Swingline Amount, (v) shall not exceed in aggregate principal amount at any time outstanding on the Maximum Swingline Amount; provided that notwithstanding anything Restatement Effective Date, when added to the contrary contained in preceding clauses (iii) and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the aggregate principal amount of Revolving Loans incurred on such Swingline Loans date, an amount equal to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in$75,000,000, and calculated in accordance with, (vi) shall be the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions joint and several obligations of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender’s risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender’s Percentage each of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received written notice from the Borrower or the Required Lenders stating that a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to existBorrowers.
(df) On any Business Day, the Swingline Lender BTCo may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings a Borrowing of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “"Mandatory Borrowing”") shall be made on the immediately succeeding Business Day by all such Lenders Banks with a Revolving Loan Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 10) pro rata based on each such Lender’s Bank's Adjusted Percentage (determined determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied directly to BTCo to repay the Swingline Lender BTCo for such outstanding Swingline Loans. Each such Lender Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day’s 's notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender BTCo notwithstanding that (i) the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of the Total Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at such time; provided that, in no event shall such Bank be required to make Revolving Loans in excess of such Bank's Revolving Loan Commitment. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement commencement of a proceeding under the Bankruptcy Code with respect to any of the BorrowerBorrowers), then each such Lender Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower Borrowers on or after such date and prior to such purchase) from the Swingline Lender BTCo such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders Banks to share in such Swingline Loans ratably based upon their respective Adjusted Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment Commitments pursuant to the last paragraph of Section 10), provided that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender BTCo until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender Bank shall be required to pay the Swingline Lender BTCo interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participationparticipation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable applicable to Revolving Loans maintained as Base Rate Loans hereunder here- under for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loanthereafter.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
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Sources: Credit Agreement (Interco Inc)
The Commitments. (a) Subject to and upon the terms and conditions conditions set forth herein, each Lender Bank with an Initial a Tranche A Term Loan Commitment severally agrees to make make, on the Initial Borrowing Date, a term loan or term loans (each an “Initial each, a "Tranche A Term Loan” " and, collectively, the “Initial "Tranche A Term Loans”") to the Borrower, which Initial Tranche A Term Loans (i) shall be incurred pursuant to made and initially maintained as a single drawing on the Effective Date, (ii) shall, at the option Borrowing of the Borrower, be Base Rate Loans or, (subject to Section 1.15, Eurodollar Loans, provided that, except as otherwise specifically provided in Section 1.10(b), all Initial the option to convert such Tranche A Term Loans comprising the same Borrowing shall at all times be of the same Type, pursuant to Section 1.06) and (iiiii) shall be made by each such Lender Bank in that initial aggregate principal amount which does not exceed as is equal to the Initial Tranche A Term Loan Commitment of such Lender Bank on the Effective Datesuch date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(b)(i) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(b)(ii)). Once repaid, Initial Tranche A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions set forth herein, each Lender Bank with a Tranche B Term Loan Commitment severally agrees to make, on the Initial Borrowing Date, a term loan (each, a "Tranche B Term Loan" and, collectively, the "Tranche B Term Loans") to the Borrower, which Tranche B Term Loans (i) shall be made and initially maintained as a single Borrowing of Base Rate Loans (subject to the option to convert such Tranche B Term Loans pursuant to Section 1.06) and (ii) shall be made by each Bank in that initial aggregate principal amount as is equal to the Tranche B Term Loan Commitment of such Bank on such date (before giving effect to any reductions thereto on such date pursuant to Section 3.03(c)(i) but after giving effect to any reductions thereto on or prior to such date pursuant to Section 3.03(c)(ii)). Once repaid, Tranche B Term Loans incurred hereunder may not be reborrowed.
(c) Subject to and upon the terms and conditions set forth herein, each Bank with a Revolving Loan Commitment severally agrees, at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Revolving Loan Maturity Date, to make a revolving revolving loan or revolving loans (each, a “"Revolving Loan” " and, collectively, the “"Revolving Loans”") to the Borrower, which Revolving Loans (i) shall, at the option of the Borrower, be Base Rate Loans or, subject to Section 1.15, or Eurodollar Loans, provided that, PROVIDED that (A) except as otherwise specifically specifically provided in Section 1.10(b), all Revolving Loans comprising the same Borrowing shall at all times be of the same TypeType and (B) no Revolving Loans maintained as Eurodollar Loans may be incurred prior to the earlier of (1) the 5th day after the Initial Borrowing Date and (2) the Syndication Date, (ii) may be repaid and reborrowed at any time in accordance accordance with the provisions hereof, (iii) shall not exceed for any such Lender Bank at any time outstanding outstanding that aggregate principal amount which, when added to the product of (Ax) such Lender’s Bank's Adjusted Percentage and (By) the sum of (I) the aggregate amount of all Letter of Credit Outstandings Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Lender at such time and (iv) shall not exceed for all Lenders at any time outstanding that aggregate principal amount which, when added to (I) the aggregate amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time and (II) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, equals the Revolving Loan Commitment of such Bank at such time and (iv) shall not exceed for all Banks at any time outstanding that aggregate principal amount which, when added to (w) the amount of all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) at such time, (x) the aggregate principal amount of all Swingline Loans (exclusive of Swingline Loans which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Revolving Loans) then outstanding, (y) the principal amount of Indebtedness outstanding pursuant to Section 9.04 (xi) and (z) the Foreign Loan Amount at such time, equals the Total Revolving Loan Commitment at such time; provided that, notwithstanding anything to the contrary contained above in this clause (iv), in no event shall any Revolving Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof, the Revolving Exposure would exceed $150,000,000 unless (i) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Revolving Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Revolving Loans, (ii) at the time of the incurrence of any such Revolving Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Revolving Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Revolving Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof.
(cd) Subject to and upon the terms and conditions herein set forth hereinforth, the Swingline Lender Bank in its individual capacity agrees to make, make at any time and from time to time on and after the Effective Initial Borrowing Date and prior to the Swingline Expiry Date, a revolving loan or revolving loans (each each, a “"Swingline Loan” " and, collectively, the “"Swingline Loans”") to the Borrower, which Swingline Loans (i) shall be made and maintained as Base Rate Loans, (ii) may be repaid and reborrowed in accordance with the provisions hereof, (iii) shall not exceed in aggregate principal amount at any time outstandingoutstanding, when combined with added to (w) the aggregate principal amount of all Revolving Loans made by Non-Defaulting Banks then outstanding and outstanding, (x) the Letter of Credit Outstandings (exclusive of Unpaid Drawings which are repaid with the proceeds of, and simultaneously with the incurrence of, the respective incurrence of Swingline Loans) at such time, (y) the Foreign Loan Amount at such time and (z) the principal amount of Indebtedness outstanding pursuant to Section 9.04 (xi), an amount equal to the Adjusted Total Revolving Loan Commitment at such timetime (after giving effect to any reductions to the Adjusted Total Revolving Loan Commitment on such date), and (iv) shall not exceed in aggregate principal amount at any time outstanding the Maximum Swingline Amount; provided that notwithstanding anything to the contrary contained in preceding clauses (iii) Amount and (iv), in no event shall any Swingline Loans be permitted to be incurred pursuant to this Agreement if after giving effect to the incurrence thereof the Revolving Exposure would exceed $150,000,000 unless (iv) the Senior Subordinated Note Borrowing Base after giving effect to such incurrence of Swingline Loans equals or exceeds the Revolving Exposure after giving effect to such incurrence of Swingline Loans, (ii) at the time of the incurrence of any such Swingline Loans, there is sufficient availability under the dollar basket contained in Section 4.03(xi) of the Senior Subordinated Note Indenture such that the principal amount of such Swingline Loans to be incurred is permitted under such Section 4.03(xi) or (iii) after giving effect to the incurrence of such Swingline Loans, the Interest Coverage Ratio (as defined in, and calculated in accordance with, the Senior Subordinated Note Indenture (for this purpose utilizing the component definitions of such definition of Interest Coverage Ratio in the manner defined in, and calculated in accordance with, the Senior Subordinated Note Indenture)) would be greater than 2.00:1.00, provided further that the immediately preceding proviso shall not be applicable after such time as when the entire principal amount of all outstanding Senior Subordinated Notes has been indefeasibly repaid in full and the Borrower’s and its Restricted Subsidiaries’ obligations under the Senior Subordinated Note Indenture and the other Senior Subordinated Note Documents have been terminated in accordance with the terms thereof. The Swingline Lender shall not be obligated to make any Swingline Loans at a time when a Lender Default exists unless extended if the Swingline Lender has entered into an arrangement satisfactory to it and the Borrower, to eliminate the Swingline Lender’s risk with respect to the Lender which is the subject of such Lender Default, including by cash collateralizing the Lender’s Percentage of the outstanding Swingline Loans. Notwithstanding anything to the contrary contained in this Section 1.01(c), the Swingline Lender shall not make any Swingline Loan after it has received Bank receives a written notice from the Borrower Administrative Agent or the Required Lenders stating Banks that has not been rescinded that there is a Default or an Event of Default exists and is continuing until such time as (A) the Swingline Lender shall have received written notice (i) of rescission of all such notices from the party or parties originally delivering such notice, or (ii) of the waiver of such Default or Event of Default by the Required Lenders or (B) the Administrative Agent in good faith believes that such Default or Event of Default has ceased to existexistence hereunder.
(de) On any Business Day, the Swingline Lender Bank may, in its sole discretion, give notice to the Lenders with Revolving Loan Commitments other Banks that its outstanding Swingline Loans shall be funded with one or more Borrowings a Borrowing of Revolving Loans (provided that such notice shall be deemed to have been automatically given upon the occurrence of a Default or an Event of Default under Section 10.05 or upon the exercise of any of the remedies provided in the last paragraph of Section 10), in which case one or more Borrowings a Borrowing of Revolving Loans constituting constituting Base Rate Loans (each such Borrowing, a “"Mandatory Borrowing”") shall be made on the immediately succeeding Business Day by all such Lenders Banks with a Revolving Loan Commitment (without giving effect to any reductions thereto pursuant to the last paragraph of Section 10) pro rata RATA based on each such Lender’s Bank's Adjusted Percentage (determined determined before giving effect to any termination of the Revolving Loan Commitments pursuant to the last paragraph of Section 10) and the proceeds thereof shall be applied paid directly to the Swingline Bank to repay the Swingline Lender Bank for such outstanding Swingline Loans. Each such Lender Bank hereby irrevocably agrees to make Revolving Loans upon one Business Day’s 's notice pursuant pursuant to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on the date specified in writing by the Swingline Lender Bank notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the Minimum Borrowing Amount minimum amount for Borrowings otherwise required hereunder, (ii) whether any conditions specified specified in Section 6 are then satisfied, (iii) whether a Default or an Event of Default then exists, (iv) the date of such Mandatory Borrowing Borrowing and (v) the amount of the Total Revolving Loan Commitment or the Adjusted Total Revolving Loan Commitment at such time. In the event that any Mandatory Borrowing cannot for any reason be made on the date otherwise required above (including, without limitation, as a result of the commencement commencement of a proceeding under the Bankruptcy Code with respect to the Borrower), then each such Lender Bank hereby agrees that it shall forthwith purchase (as of the date the Mandatory Borrowing would otherwise have occurred, but adjusted for any payments received from the Borrower on or after such date and prior to such purchase) from the Swingline Lender Bank such participations in the outstanding Swingline Loans as shall be necessary to cause such Lenders Banks to share in such Swingline Loans ratably based upon their respective Adjusted Percentages (determined before giving effect to any termination of the Total Revolving Loan Commitment Commitments pursuant to the last paragraph of Section 10), provided PROVIDED that (x) all interest payable on the Swingline Loans shall be for the account of the Swingline Lender Bank until the date as of which the respective participation is required to be purchased and, to the extent attributable to the purchased participation, shall be payable to the participant from and after such date, date and (y) at the time any purchase of participations pursuant to this sentence is actually made, the purchasing Lender Bank shall be required to pay the Swingline Lender Bank interest on the principal amount of participation purchased for each day from and including the day upon which the Mandatory Borrowing would otherwise have occurred to but excluding the date of payment for such participationparticipation, at the overnight Federal Funds Rate for the first three days and at the rate otherwise applicable applicable to Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter and (z) whenever the Swingline Lender receives a payment in respect of a Swingline Loan in which such a participation has been purchased, the Swingline Lender shall pay to the Lenders which acquired such participation an amount equal to such Lenders’ share in such Swingline Loanthereafter.
(e) Subject to Section 1.13, the other terms and conditions set forth herein and the relevant Incremental Commitment Agreement, each Lender with an Incremental Term Loan Commitment severally agrees to make a term loan or term loans (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) to the Borrower, which Incremental Term Loans: (1) only may be incurred on one or more Incremental Term Loan Borrowing Dates (which dates, in any event (x) shall not be earlier than the Syndication Date and (y) shall not be later than the Revolving Loan Maturity Date);
Appears in 1 contract