Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans. (b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments. (c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor. (d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated). (e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan. (f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 3 contracts
Sources: Credit Agreement (GTT Communications, Inc.), Credit Agreement (GTT Communications, Inc.), Credit Agreement (GTT Communications, Inc.)
Increase in Commitments. (ai) The (x) U.S. Borrower mayshall have the option, without the consent of the Lenders, from time to time to cause one or more increases in the Aggregate Commitments by written notice adding, subject to the prior approval of the Administrative Agent at any time after and the Closing Date, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion Issuing Banks (such consent approval not to be unreasonably withheld, conditioned or delayed), to this Agreement one or more financial institutions as Lenders (collectively, the extent the Administrative Agent would be required “New Lenders”) or by allowing one or more Lenders to consent increase their respective Commitments; provided however that: (A) prior to and after giving effect to the assignment increase, no Default or Event of any Loans or Default shall have occurred hereunder and be continuing, (B) no such increase shall cause the Aggregate Commitments to exceed $1,800,000,000, (C) no Lender’s Commitment shall be increased without such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement Lender’s consent, and (iiD) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which increase shall be evidenced by a commitment increase agreement in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 form and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be substance reasonably acceptable to the Administrative Agent and executed by the Borrower, the Administrative Agent, the New Lenders, if any, and Lenders increasing their Commitments, if any, and which shall indicate the amount and allocation of such increase in the Aggregate Commitments and the effective date of such increase (the “Increase Effective Date”), such minimum increments as . Each financial institution that becomes a New Lender pursuant to this Section by the Applicable Borrower execution and delivery to the Administrative Agent of the applicable commitment increase agreement shall reasonably agree), be a “Lender” for all purposes under this Agreement on the applicable Increase Effective Date. The Borrower shall borrow and prepay Loans on each Increase Effective Date (and pay any additional amounts required pursuant to Section 2.16) to the extent necessary to keep the outstanding Revolving Loans of each Lender ratable with such Lender’s revised Applicable Percentage after giving effect to any nonratable increase in the Aggregate Commitments under this Section.
(ii) As a condition precedent to each increase pursuant to subsection (c)(i) above, the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which Borrower shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver Agent, to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined extent requested by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans following in form and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender :
(A) a certificate dated as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees thatIncrease Effective Date, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms signed by a Responsible Officer of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that each of the conditions to such increase set forth in this Section 4.02(iii2.01(c) shall be satisfied immediately have occurred and been complied with and that, before and after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromincrease, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties (other than Added L/C Representations) contained herein in this Agreement and in the other Loan Documents shall be are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of the Increase Effective Date after giving effect to such date to the same extent as though made on and as of that dateincrease, except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties shall have been they were true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds , and (2) no Default or Event of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations Default exists and warranties as described in this clause is continuing;
(B) shall be required as such certificates of resolutions or other action, incumbency certificates and/or other certificates of a Responsible Officer of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that Borrower as the Administrative Agent may take any reasonably require evidencing the identity, authority and all action capacity of such Responsible Officer thereof authorized to act as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included a Responsible Officer in each Borrowing of the applicable Class of outstanding Term Loans to which connection with such Incremental Term Loan relate on a pro rata basisincrease agreement, and such documents and certifications as the U.S. Administrative Agent may reasonably require to evidence that the Borrower agrees that Section 3.02 shall apply is validly existing and in good standing in its jurisdiction of organization; and
(C) a favorable customary opinion of counsel to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans the Borrower, relating to Base Rate Loans reasonably required such increase agreement, addressed to the Administrative Agent and each Lender if requested by the Administrative Agent or such Lenders.
(iii) The Borrower shall have the option, by agreement with any Lender to effect (A) after consultation with the foregoing. In additionAdministrative Agent, cause such Lender to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required become or cease to be made after an Issuing Bank under this Agreement and (B) increase or decrease the making Letter of such Incremental Term Loans shall be ratably increased by the aggregate principal amount Credit Commitment of such Incremental Term Loans of the same Classany Lender as an Issuing Bank.
Appears in 3 contracts
Sources: Credit Agreement (Williams Companies Inc), Credit Agreement (WPX Energy, Inc.), Credit Agreement (Williams Companies Inc)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written Upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments denominated in any currency to be incurred by the Borrower and/or any U.S. Subsidiary Guarantor (each, an “Incremental Facility”) pursuant to any Incremental Joinder; provided that after giving effect to any such addition, the aggregate amount of all additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall be incurred in compliance with the requirements of the Incremental Cap, tested at the time of incurrence thereof. Each such addition under this Section 2.16(a). shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(b) Any loans made in respect of any such additional Term Commitments (the “Incremental Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Initial Term Loans with the same terms (including pricing) as the existing Initial Term Loans, or (ii) creating a new tranche of terms loans (an “Incremental Term Loan Class”); provided that any Incremental Term Loan Class (A) shall not mature prior to the stated Maturity Date applicable to the latest maturing Class of Term Loans on the date of incurrence of such Incremental Term Loans, (B) the Weighted Average Life to Maturity of any Incremental Term Loan Class shall be no less than the Weighted Average Life to Maturity of such latest maturing Class of Term Loans and (C) any Incremental Term Loans may participate on a pro rata basis, a less than pro rata basis (or, solely as compared to any later maturing Class of Term Loans, greater than pro rata basis) in any mandatory prepayments (but on a pro rata basis, greater than pro rata basis or a less than pro rata basis in any voluntary prepayments) with the then outstanding Term Loans; provided that clauses (A) and (B) above shall not apply to (X) any customary bridge loans so long as any loans, notes, securities or other Indebtedness which exchanged for or otherwise replace such bridge loans satisfies (or will satisfy at the time after of incurrence or rollover) the Closing Date, request on requirements of such clauses and (Y) Incremental Facilities with an aggregate outstanding principal amount not in excess of $350,000,000.
(c) Any such additional Revolving Credit Commitments may be made by (x) establishing one or more occasions additional Classes of revolving credit commitments (an “Incremental Term Loan Revolving Facility”); provided the (i) final maturity date of any such Incremental Revolving Facility shall be no earlier than the final maturity date of the Initial Revolving Credit Facility, (ii) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the final maturity date of the Initial Revolving Credit Facility and (iii) any Incremental Revolving Facility may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro basis) in any reduction or termination as compared to earlier maturing Revolving Credit Commitments and/or or (y) increasing any Class of Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”) with the same terms as such existing Class of Revolving Credit Commitments (it being understood that, if required to consummate an Incremental Revolving Facility, the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Credit Facility being increased may be increased for all Revolving Credit Lenders of the Revolving Credit Facility being increased, but additional upfront or similar fees may be payable to the Lenders participating in the Incremental Revolving Credit Commitments and without any requirement to pay such amounts to any existing Revolving Credit Lenders).
(yd) the EMEA The Borrower may, by written notice may invite any Lender or any additional Eligible Assignees to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental become Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include pursuant to a commitment increase and joinder agreement (each, an “Incremental Joinder”). No Lender will be obligated to provide all or any existing Lender (each portion of which any Incremental Facility and the determination to provide such commitment shall be entitled within the sole and absolute discretion of such Lender. Any failure by a Lender to agree or decline respond to participate in its sole discretion; provided that if any such existing Lender does invitation shall not respond to such written notice within five (5) Business Days, such Lender shall be deemed an acceptance or agreement to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to provide such Incremental Facility.
(e) If any Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent added in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans accordance with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable BorrowerSection 2.16, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Term Lenders Effective Date”) and reasonably satisfactory to the Administrative Agentfinal allocations of such additional Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of Borrower and the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders lenders providing such Incremental Term Loan Commitments or Facility of the final allocation thereof and the Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made Effective Date. As a condition precedent to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien prioritiessuch addition, rights of payment before and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromincrease, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (Bi)(A) the representations and warranties contained herein in Article 5 and in the other Loan Documents shall be are true and correct in all material respects (except for those representations that any representation and warranties warranty that are conditioned by is qualified as to “materiality” or “material adverse effect”, which Material Adverse Effect” shall be true and correct in all respectsrespects as so qualified) on and as of such date to the same extent as though made on and as of that dateIncremental Effective Date, except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties they shall have been true and correct in all material respects as of such earlier date, and (except for those B) no Event of Default exists after giving effect to such addition (or, in the case incurred to fund a Permitted Acquisition, no Specified Event of Default exists after giving effect to such addition); provided that notwithstanding anything to the contrary in this Section 2.16 or in any other provisions of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Transaction, at the option of the Borrower, (1) the conditions to the Incremental Effective Date shall be subject to the LCT Provisions and (2) the only representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been will be required to be true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required material respects as of the time applicable Incremental Effective Date shall be the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of LoanSpecified Representations).
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all On each Incremental Effective Date, (i) each Lender or Eligible Assignee which is providing an Incremental Term Loans Loan Class (A) shall become a “Term Lender” for all purposes of this Agreement and the other than Other Loan Documents, and (B) shall make an Incremental Term Loans), when originally made, are included in each Borrowing of Loan to the Borrower or the applicable Class of outstanding Subsidiary Guarantor in a principal amount equal to such additional Term Loans to which Commitment, and such Incremental Term Loan relate shall be deemed a “Term Loan” for all purposes of this Agreement and the other Loan Documents and (ii) each Lender or Eligible Assignee which is providing an Incremental Revolving Credit Commitment shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents, with a Revolving Credit Commitment of the applicable Class.
(g) The interest rate applicable to any Incremental Term Loans will be determined by the Borrower and the lenders providing such Incremental Term Loans; provided that in the case of any such Incremental Term Loans denominated in Dollars that are secured by the Collateral on a pro rata basispari passu basis with the Initial Term Loans in right of payment and with respect to security (other than customary bridge loans), the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the Initial Term Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Eurocurrency Rate floor) with respect to the Initial Term Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum (it being agreed that, the relative rate differentials in any pricing grid specified in the Applicable Margin shall continue to be maintained), provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In-Rate to any Initial Term Loan due to the application or imposition of an Base Rate floor or Eurocurrency Rate floor on any such Indebtedness shall be effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Eurocurrency Rate floor applicable to such Initial Term Loan.
(h) Any Incremental Facility, if secured, may be secured only by the Collateral (provided that, in the case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the applicable funds and related assets held in Escrow (and the U.S. proceeds thereof) until the time of the release from Escrow of such funds (and may not be secured by any other assets prior to such release)) and rank pari passu or junior with respect to security with the Facilities (and if secured, subject to an Acceptable Intercreditor Agreement (which may be effective (or entered into) only immediately after such release from Escrow referred to herein)) and, if guaranteed, will not be guaranteed by an entity which is not (or does not become) a Loan Party.
(i) Except as otherwise specified above, the other terms of any Incremental Facility (including with respect to pricing, interest rate margins, rate floors, discounts, fees, premiums and prepayment or redemption terms and provisions), shall be on terms and pursuant to documentation to be determined between the Borrower agrees that Section 3.02 shall apply to any conversion and the lenders providing such Incremental Facility (and for the avoidance of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by doubt, no consent of the Administrative Agent shall be required except to effect the foregoing. In additionextent affecting the rights and duties of, or any fees or other amounts payable to, the Administrative Agent); provided that, at the election of the Borrower, to the extent any more restrictive covenant is added for the benefit of any Incremental Term Loans are not Other Term Loans, Facility (except to the scheduled amortization payments set forth in Section 2.13(b) required to be made extent only applicable after the making latest maturity date of the Facilities), such covenant may also be added for the benefit of all of the Facilities (or, in the case of a financial maintenance covenant, solely for the benefit of the Initial Revolving Credit Facility or other Facility that benefits from a financial maintenance covenant at such time); it being understood and agreed that no consent of the Administrative Agent and/or any Lender shall be required in connection with any amendment adding such covenant or implementing such Incremental Term Loans Facility. The Borrower shall provide the Administrative Agent prompt written notice of any amendment to effect an Incremental Facility pursuant to this Section 2.16 and the Administrative Agent hereby agrees to (and is directed by each Lender to) acknowledge such amendment as promptly as practicable following such written notice; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such, shall have no liability with respect to such acknowledgment and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such acknowledgment; provided that, failure to obtain such acknowledgment shall in no way affect the effectiveness of any amendment entered into to effectuate such amendment in accordance with this Section 2.16.
(j) The proceeds of any Incremental Facility may be ratably increased used by the aggregate principal amount Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of such Incremental Term Loans of the same Classpermitted acquisitions and other Investments and any other use not prohibited by this Agreement.
Appears in 3 contracts
Sources: Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Increase in Commitments. (a) The (x) U.S. Borrower may, by Upon written notice to the Administrative Agent (which shall promptly notify the Lenders), the Borrower may request: additional Term Commitments and/or additional Revolving Credit Commitments (each, an “Incremental Facility”) denominated in any currency agreed to by the lenders providing such Incremental Facility pursuant to any Incremental Joinder; provided that after giving effect to any such addition, the aggregate amount of all additional Term Commitments and additional Revolving Credit Commitments that have been added pursuant to this Section 2.16(a) shall not exceed the Incremental Cap. Each such addition under this Section 2.16(a) shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
(b) Any loans made in respect of any such additional Term Commitments (the “Incremental Term Loans”) may be made, at the option of the Borrower, either by (i) increasing the Initial Term Loans with the same terms (including pricing) as the existing Initial Term Loans or (ii) creating a new tranche of terms loans (an “Incremental Term Loan Class”); provided that any time after Incremental Term Loan Class (A)(x) in the Closing Datecase of any Incremental Term Loans that are secured by the Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security, request shall not mature prior to the stated Maturity Date applicable to the latest maturing Class of Term Loans on the date of incurrence of such Incremental Term Loans and (y) in the case of any Incremental Term Loans that are secured by a Lien that is junior to the Initial Term Loans in right of payment or with respect to security or that are unsecured, shall not mature prior to the date that is ninety-one (91) days following the stated Maturity Date applicable to the latest maturing Class of Term Loans on the date of incurrence of such Incremental Term Loans, (B) the Weighted Average Life to Maturity of any Incremental Term Loan Class shall be no less than the Weighted Average Life to Maturity of such latest maturing Class of Term Loans, (C) any Incremental Term Loans secured by the Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security may share on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) in any mandatory or voluntary prepayments with the then outstanding Term Loans and (D) any Incremental Term Loans that are secured by a Lien that is junior to the Initial Term Loans in right of payment or with respect to security or that are unsecured may not share in any mandatory or voluntary prepayments with the then outstanding Term Loans.
(c) Any such additional Revolving Credit Commitments may be made by (x) establishing one or more occasions additional Classes of revolving credit commitments (an “Incremental Term Loan Revolving Facility”); provided the (i) final maturity date of any such Incremental Revolving Facility shall be no earlier than the final maturity date of the Initial Revolving Credit Facility, (ii) such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the final maturity date of the Initial Revolving Credit Facility and (iii) any Incremental Revolving Facility may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro basis) in any reduction or termination as compared to earlier maturing Revolving Credit Commitments and/or or (y) increasing any Class of Revolving Credit Commitments (the “Incremental Revolving Credit Commitments”) with the same terms as such existing Class of Revolving Credit Commitments (it being understood that, if required to consummate an Incremental Revolving Facility, the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Facility being increased may be increased for all Revolving Lenders of the Revolving Credit Facility being increased, but additional upfront or similar fees may be payable to the Lenders participating in the Incremental Revolving Credit Commitments and without any requirement to pay such amounts to any existing Revolving Lenders).
(yd) the EMEA The Borrower may, by written notice may invite any Lender or any additional Eligible Assignees to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental become Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled pursuant to agree or decline a commitment increase and joinder agreement in form and substance reasonably satisfactory to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not each, an “Incremental Joinder”). No Lender will be obligated to be unreasonably withheld, conditioned provide all or delayed), to the extent the Administrative Agent would be required to consent to the assignment any portion of any Loans Incremental Facility and the determination to provide such commitment shall be within the sole and absolute discretion of such Lender. Any failure by a Lender to respond to any such invitation shall not be deemed an acceptance or Commitments agreement to provide such Incremental Facility.
(e) If any Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent added in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans accordance with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable BorrowerSection 2.16, the Administrative Agent and the Borrower shall determine the effective date (the “Incremental Term Lenders Effective Date”) and reasonably satisfactory to the Administrative Agentfinal allocations of such additional Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of Borrower and the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders lenders providing such Incremental Term Loan Commitments or Facility of the final allocation thereof and the Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made Effective Date. As a condition precedent to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien prioritiessuch addition, rights of payment before and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromincrease, (i) (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein in Article 5 and in the other Loan Documents shall be true and correct in all material respects (except for those representations that any representation and warranties warranty that are conditioned by is qualified as to “materiality” or “material adverse effect”, which Material Adverse Effect” shall be true and correct in all respectsrespects as so qualified) on and as of such date to the same extent as though made on and as of that dateIncremental Effective Date, except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties they shall have been true and correct in all material respects as of such earlier date, and (except for those B) no Event of Default shall exist after giving effect to such addition; provided that notwithstanding anything to the contrary in this Section 2.16 or in any other provisions of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance a Limited Condition Transaction, at the option of the Borrower, (1) the conditions to the Incremental Effective Date shall be subject to the LCT Provisions, (2) the only representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been will be required to be true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required material respects as of the time applicable Incremental Effective Date shall be the definitive agreement in respect Specified Representations and (3) no Specified Event of Limited Condition Acquisition is entered into. If applicable, Default shall exist on the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of LoanEffective Date).
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all On each Incremental Effective Date, (i) each Lender or Eligible Assignee which is providing an Incremental Term Loans Loan Class (A) shall become a “Term Lender” for all purposes of this Agreement and the other than Other Loan Documents, and (B) shall make an Incremental Term Loans)Loan to the Borrower in a principal amount equal to such additional Term Commitment, when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which and such Incremental Term Loan relate on shall be deemed a pro rata basis, “Term Loan” for all purposes of this Agreement and the U.S. Borrower agrees that Section 3.02 other Loan Documents and (ii) each Lender or Eligible Assignee which is providing an Incremental Revolving Credit Commitment shall apply become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents, with a Revolving Credit Commitment of the applicable Class.
(g) The interest rate applicable to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other will be determined by the Borrower and the lenders providing such Incremental Term Loans, ; provided that in the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making case of any such Incremental Term Loans secured by the Collateral on a pari passu basis with the Initial Term Loans in right of payment and with respect to security, the All-In-Rate applicable thereto will not be more than 0.50% per annum higher than the All-In-Rate in respect of the Initial Term Loans unless the Applicable Margin (and/or, as provided in the proviso below, the Base Rate floor or Eurocurrency Rate floor) with respect to the Initial Term Loans is adjusted to be equal to the All-In-Rate applicable to such Indebtedness, minus 0.50% per annum, provided that, unless otherwise agreed by the Borrower in its sole discretion, that any increase in All-In-Rate to any Initial Term Loan due to the application or imposition of an Base Rate floor or Eurocurrency Rate floor on any such Indebtedness shall be ratably increased effected solely through an increase in (or implementation of, as applicable) any Base Rate floor or Eurocurrency Rate floor applicable to such Initial Term Loan.
(h) Any Incremental Facility may be secured only by the aggregate principal amount Collateral (provided that, in the case of any Incremental Facility that is funded into Escrow pursuant to customary escrow arrangements, such Incremental Facility may be secured by the applicable funds and related assets held in Escrow (and the proceeds thereof) until the time of the release from Escrow of such funds (and may not be secured by any other assets prior to such release)) and rank pari passu or junior with respect to security with the Facilities (and if secured, subject to an Acceptable Intercreditor Agreement (which may be effective (or entered into) only immediately after such release from Escrow referred to herein)) or may be unsecured, and will not be guaranteed by an entity which is not (or does not become) a Loan Party.
(i) Except as otherwise specified above (including with respect to margin, pricing, maturity and/or fees), the other terms of any Incremental Facility, shall be on terms and pursuant to documentation to be determined between the Borrower and the lenders providing such Incremental Facility than the terms of this Agreement are to the Lenders; provided, that to the extent such terms and documentation are more favorable to the lenders providing such Incremental Facility (except to the extent permitted by clauses (b), (c) and (g) above), such terms shall be reasonably satisfactory to the Administrative Agent (except for covenants or other provisions applicable only to the periods after the latest maturity date of all of the existing Facilities) (it being understood that if any financial maintenance covenant is added for the benefit of (A) any Incremental Term Loans Loan Class, such financial maintenance covenant (except to the extent only applicable after the maturity date of the same ClassInitial Term Facility) may also be added for the benefit of all of the Facilities or (B) any Incremental Revolving Credit Commitments, such financial maintenance covenant (except to the extent only applicable after the maturity date of the Initial Revolving Credit Facility) may also added for the benefit of the Initial Revolving Credit Facility; it being understood and agreed that in each such case of clauses (A) and (B), no consent of any Lender shall be required in connection with any amendment adding such financial maintenance covenant and the Administrative Agent hereby agrees to acknowledge such amendment as promptly as possible, and in any case, within three (3) Business Days of written request by the Borrower; it being acknowledged and agreed by each Lender that the Administrative Agent, in its capacity as such shall have no liability with respect to such acknowledgment and each Lender hereby irrevocably waives to the fullest extent permitted by Law any claims with respect to such acknowledgment.
(j) The proceeds of any Incremental Facility may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of permitted acquisitions and other Investments and any other use not prohibited by this Agreement.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.), Credit and Guaranty Agreement (Latham Group, Inc.)
Increase in Commitments. (a) The (x) U.S. At any time, the Borrower may, if it so elects, increase the amount of the Total Revolving Credit Commitment (each such increase to be in an aggregate amount of not less than $25,000,000), either by written notice designating a financial institution or institutions (or other Person) not theretofore Lenders to the Administrative Agent at any time after the Closing Date, request on one become Lenders (such designation to be effective only if each such financial institution (or more occasions Incremental Term Loan Commitments and/or Incremental other Person) accepts a Commitment of not less than $5,000,000) or by agreeing with an existing Lender or Lenders that such Lender’s or Lenders’ Revolving Credit Commitments shall be increased. Upon execution and (y) delivery by the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one and such Lender or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental other financial institution or institutions (or other Person) of an instrument (a “Commitment Acceptance”) substantially in the form of Exhibit E hereto, with such written consents of the Issuing Lender, the Swing Line Lender and the Agent as would be required in the case of an assignment of a Revolving Credit LendersCommitment to such Person, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender or Lenders shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, Commitments as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental therein set forth or such other financial institution or institutions (or other Person) shall become Lenders with Revolving Credit Lender, if not already a Lender Commitments as therein set forth and with all the rights and obligations of Lenders with such Revolving Credit Commitments hereunder, shall be subject to the approval of ; provided that:
(i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), Borrower shall have delivered to the extent Agent a copy of the Administrative Commitment Acceptance (a copy of which the Agent would be required shall promptly deliver to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and each Lender);
(ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 before and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to increase, the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to of the Loan Parties contained in Article 3 of this Agreement shall be made true in all material respects;
(iii) at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitmentof such increase, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuingcontinuing or would result from such increase;
(iv) after giving effect to such increase (assuming for such purpose that Revolving Credit Loans in the full amount of the Total Revolving Credit Commitment were outstanding), the Incurrence Test would be met;
(v) after giving effect to such increase, the Total Revolving Credit Commitment shall not exceed, by more than $50,000,000, the Total Revolving Credit Commitment in effect on the ARCA Effective Date minus any decreases in the Total Revolving Credit Commitment made pursuant to Section 2.11 or Section 2.12; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing and
(1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (Bvi) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice such evidence (including an opinion of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by counsel for the date and time required hereunder with respect Loan Parties) as it may reasonably request to confirm the applicable Type of Loan.
(f) Each due authorization of the parties hereto hereby agrees that transactions contemplated by this Section and the Administrative Agent may take any validity and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing enforceability of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans obligations of the same ClassLoan Parties resulting therefrom.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Tower International, Inc.), Revolving Credit and Guaranty Agreement (Tower International, Inc.)
Increase in Commitments. (a) The (x) U.S. Subject to the terms and conditions set forth herein, the Administrative Borrower mayshall have the right to request, by written notice to the Administrative Agent at any time after Agent, increases in the Closing Date, request on one or more occasions Incremental Term Loan Legacy Commitments and/or Incremental the ETMC Commitments (a “Revolving Commitment Increase”) in an aggregate amount not to exceed $100,000,000; provided that (i) any Revolving Commitment Increase shall be on the terms (including the Maturity Date) and pursuant to the documentation applicable to the Revolving Credit Facilities, (ii) the Administrative Borrower shall only be permitted to request three Revolving Commitment Increases during the term of this Agreement and (v) any Revolving Commitment Increase shall be in a minimum amount of $5,000,000.
(b) Each notice submitted pursuant to this Section 2.14 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify (x) the amount of the increase in the Commitments being requested and (y) whether such increase is requested for the EMEA Borrower mayETMC Commitments or the Legacy Commitments. Upon receipt of a Revolving Commitment Increase Notice, by written notice the Administrative Agent may (at the direction of the Administrative Borrower) promptly notify the Lenders under the applicable Revolving Credit Facility and each such Lender may (subject to the Administrative Agent at Borrower’s consent) have the right to elect to have its Commitment increased by its Applicable Pro Rata Share (it being understood and agreed that a Lender may elect to have its Commitment increased in excess of its Applicable Pro Rata Share in its discretion if any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing other Lender (each of which shall be entitled to agree or decline declines to participate in the Revolving Commitment Increase) of the requested increase in Commitments; provided that (i) each applicable Lender may elect or decline, in its sole discretion; provided , to have its Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Commitment unless it, in its sole discretion, so agrees and, if any such existing a Lender does not fails to respond to such written notice any Revolving Commitment Increase Notice within five ten (510) Business DaysDays after such ▇▇▇▇▇▇’s receipt of such request, such Lender shall be deemed to have declined to participate thereinin such Revolving Commitment Increase; (ii) and if any Lender declines to participate in any Revolving Commitment Increase and, as a result, commitments from additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, are required in connection therewith; providedwith the Revolving Commitment Increase, further that each Incremental Term Lender or if the Administrative Borrower does not instruct the Administrative Agent to initially request increases of the existing Lenders and Incremental commitments of additional lenders are sought in connection with the Revolving Credit LenderCommitment Increase, if not already a Lender hereunder, any Person or Persons providing such commitment shall be subject to the approval written consent of (i) the Administrative Agent in its reasonable discretion and the Swing Line Lenders and with respect to Revolving Commitment Increases for the Legacy Commitments, the L/C Issuers (each such consent not to be unreasonably withheld, conditioned withheld or delayed), to the extent the Administrative Agent in each case, if such consent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement Section 11.07; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase and (iiiv) no L/C Issuer or Swing Line Lender shall be required to act in connection with Incremental such capacity under the Revolving Credit Commitments only, each LC Issuer, Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to the extent such consent would have been required for assignments of participate in any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth Commitment Increase (i) the amount of the Incremental Term each an “Increase Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative AgentLender”), such minimum increments Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Applicable Borrower Increase Loan Lenders and the Administrative Agent Borrower, which date shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days as soon as practicable after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms receipt of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that Commitment Increase Notice (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii)date, the “MFN ProtectionIncrease Date”). As used in ; provided that the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, establishment of such Revolving Commitment Increase shall be equal subject to the sum satisfaction of each of the following conditions: (1) (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” no Default or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus Event of Default would exist after giving effect thereto or (y) if the Lenders making such Other Term Loans receive any upfront fee Revolving Commitment Increase is used to finance a Permitted Acquisition or similar fees Permitted Investment, no Event of Default pursuant to Section 9.01(a) or 9.01(f) exists; (including original issue discount where 2) the amount of such discount is equated Revolving Commitment Increase shall be effected pursuant to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring one or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided more joinder agreements executed and delivered by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Administrative Borrower, the Administrative Agent Agent, and the Incremental Term Lenders Increase Loan Lenders, each of which shall be reasonably satisfactory to the Administrative Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Loan Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Loan Documents, legal opinions and other documents as the Administrative Agent may reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
; (c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B4) the representations and warranties contained herein and in the other Loan Documents Article VI shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except respects to the extent such representations and warranties specifically relate that any representation or warranty is qualified by materiality) as of the Increase Date; provided that, if the Revolving Commitment Increase is used to an earlier datefinance a Permitted Acquisition or a Permitted Investment, in which case such the representations and warranties shall have been true be subject to customary “Sungard” limitations; and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which 5) the Borrowers shall have been true and correct in all respects) on and as of such earlier date; provided that paid to the extent that Administrative Agent and the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are Lenders such additional fees as may be agreed to be used to finance a Limited Condition Acquisitionpaid by the Borrowers in connection therewith.
(c) On the Increase Date, then upon fulfillment of the accuracy of representations and warranties as described conditions set forth in this clause Section 2.14, (Bi) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received effect a Notice settlement of Borrowing in respect of any Incremental Term all outstanding Loans or Incremental under the applicable Revolving Loans by Credit Facility among the date and time required hereunder with respect applicable Lenders that will reflect the adjustments to the Commitments under the applicable Type Revolving Credit Facility of Loanthe applicable Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Loan Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) Revolving Credit Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Revolving Credit Note.
(fd) Each The terms and provisions of the parties hereto hereby agrees that Revolving Commitment Increase shall be identical to the Loans and the Commitments under the applicable Revolving Credit Facility. Without limiting the generality of the foregoing, (i) Commitment Fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rates applicable to the existing Loans under the applicable Revolving Credit Facility, (ii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Loans under the applicable Revolving Credit Facility, (iii) after giving effect to such Revolving Commitment Increases, Commitments under the applicable Revolving Credit Facility shall be reduced based on each such Lender’s Applicable Pro Rata Share, and (iv) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the existing Loans under the applicable Revolving Credit Facility. Each joinder agreement and any amendment to any Loan Document requested by the Administrative Agent may take in connection with the establishment of the Revolving Commitment Increase may, without the consent of any of the Lenders, effect such amendments to this Agreement and all action the other Loan Documents as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans)or appropriate, when originally made, are included in each Borrowing the opinion of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent and the Administrative Borrower, to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in provisions of this Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class2.14.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Ardent Health Partners, LLC), Abl Credit Agreement (Ardent Health Partners, LLC)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written Upon notice to the Administrative Agent Agent, at any time after the Closing Effective Date, the Borrower may request on one or more occasions Incremental Term Loan Commitments and/or Incremental that Additional Revolving Credit Commitments be provided by Additional Revolving Credit Lenders (which may include Persons meeting the definition of an Eligible Assignee) on terms agreed to by the Borrower and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Additional Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (after giving effect to any such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Additional Revolving Credit Lender Commitments, the aggregate amount of Additional Revolving Credit Commitments that have been added pursuant to this Agreement Section 2.18 shall not exceed $50,000,000 and (ii) in connection with Incremental the final maturity date and the Applicable Margin of any Additional Revolving Credit Commitments only, each LC Issuer, Advances shall be equal respectively to Termination Date and the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount Applicable Margin of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments ofAdvances, in effective upon the case providing of Incremental Term Loan Commitments and/or Incremental the Additional Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. ObligationsAdvances. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental the Lender Parties shall not be obligated to commit to the Additional Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving LoansCommitments.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Any Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender Commitments to provide Additional Revolving Credit Advances under this Section 2.18 shall execute and deliver be added to this Agreement pursuant to an amendment (the Administrative Agent an “Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify Amendment”) among the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii)Parent, the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative AgentAdditional Revolving Credit Lenders. The Administrative Agent shall promptly notify each Lender as As a condition precedent to the effectiveness of each the Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment Amendment, the Borrower shall become effective under this Section 2.17 unless on the date of such effectiveness, deliver to the Administrative Agent shall have received a certificate on behalf of the Borrower dated as of the effective date (the “Additional Commitments Effective Date”) signed by a Responsible Officer of the Borrower certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately that, before and after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromincrease, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (Bi) the representations and warranties of the Loan Parties contained herein in Article IV and in the other Loan Documents shall be are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that dateAdditional Commitments Effective Date, except to the extent that such representations and warranties specifically relate refer to an earlier date, (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, (iii) the Borrower and its Subsidiaries shall be in which case such representations and warranties shall have been true and correct compliance with the covenants set forth in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and Section 5.05 as of such earlier date; provided that to (A) the extent that the proceeds of Loans under any Incremental Revolving Credit Additional Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations Effective Date and warranties as described in this clause (B) the last day of the most recently ended determination period after giving pro forma effect to such Additional Revolving Credit Commitment, the making of Additional Revolving Credit Advances in respect thereof and any Investment to be consummated in connection therewith. On each Additional Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Revolving Credit Commitment (i) shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Revolving Credit Commitment, shall make an Additional Revolving Credit Advance to the Company in a principal amount equal to such Additional Revolving Credit Commitment, and such Additional Revolving Credit Advance shall be required as a “Revolving Credit Advance” for all purposes of this Agreement and the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loanother Loan Documents.
(fc) Each Any Additional Revolving Credit Commitment Amendment and any related documentation may, without the consent of any Lenders (other than Additional Revolving Credit Lenders that are party to such Additional Revolving Credit Commitment Amendment), effect such amendments to this Agreement and the parties hereto hereby agrees that the Administrative Agent may take any and all action other Loan Documents as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans)necessary, when originally made, are included in each Borrowing the opinion of the applicable Class Administrative Agent, to effect the provisions of outstanding Term Loans this Section 2.18. Any Additional Revolving Credit Advances made pursuant to which such Incremental Term Loan relate on a pro rata basis, and this Section 2.18 shall be evidenced by one or more entries in the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required Register maintained by the Administrative Agent to effect in accordance with the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments provisions set forth in Section 2.13(b9.07(d).
(d) required This Section 2.18 shall supersede any provisions in Section 9.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be made after the making of such Incremental Term Loans shall be ratably increased amended by the aggregate principal amount of such Incremental Term Loans of Administrative Agent and the same ClassLoan Parties, if necessary, to provide for terms applicable to each Additional Revolving Credit Commitment.
Appears in 2 contracts
Sources: Asset Based Loan Credit Agreement (Express Parent LLC), Asset Based Loan Credit Agreement (Express Parent LLC)
Increase in Commitments. (a) The (x) U.S. Borrower may, may by written notice to the Administrative Agent at elect to seek commitments (“Additional Commitments”) to increase the Commitments; provided that:
(i) the aggregate amount of all Additional Commitments shall not exceed $200,000,000;
(ii) any time after such increase shall be in an aggregate amount of $10,000,000 or any whole multiple of $500,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the Closing limit set forth in the preceding clause (i);
(iii) the Additional Commitments shall be on the same terms as the Commitments then outstanding with the latest Maturity Date immediately prior to the Additional Commitments Effective Date, request on one or more occasions Incremental Term Loan ; provided that (x) the Additional Commitments and/or Incremental Revolving Credit may have a higher Applicable Rate than the outstanding Commitments with the latest Maturity Date immediately prior to the Additional Commitments Effective Date if the Applicable Rate for the outstanding Commitments with the latest Maturity Date are automatically increased such that it is equal to the Applicable Rate for the Additional Commitments and (y) the EMEA Borrower maymay pay upfront fees on the Additional Commitments Effective Date to any Lender providing Additional Commitments (in such capacity, by written an “Additional Commitment Lender”); and
(iv) no existing Lender shall be required to provide any Additional Commitments.
(b) Each such notice shall specify (x) the date (each, an “Additional Commitments Effective Date”) on which the Borrower proposes that the Additional Commitments shall be effective, which shall be a date reasonably acceptable to the Administrative Agent at any time after and (y) the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed identity of the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender Persons (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five an Eligible Assignee (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already for this purpose treating a Lender hereunder, shall of Additional Commitments as if it were an assignee)) whom the Borrower proposes would provide the Additional Commitments and the portion of the Additional Commitment to be subject provided by each such Person. As a condition precedent to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment effectiveness of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Additional Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent a certificate dated as of the Additional Commitments Effective Date signed by a Responsible Officer of the Borrower certifying that the conditions in Section 4.02(a) and (b) are satisfied. The Borrower shall prepay any Loans outstanding on the Additional Commitments Effective Date with respect to any Additional Commitment (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments. If there is a new Borrowing of Commitments on such Additional Commitments Effective Date, the Lenders after giving effect to such Additional Commitments shall make such Loans in accordance with Section 2.01.
(c) The Additional Commitments shall be documented by an Additional Credit Extension Amendment executed by each Additional Commitment Lender providing the Additional Commitments (and such the other documentation as Persons specified in the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment definition of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such but no other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit existing Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment may provide for such amendments to this Agreement and the extent not inconsistent with other Loan Documents as may be necessary or appropriate, in the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, reasonable opinion of the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory Borrower, to effect the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness provisions of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower GuarantorSection 2.14.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment This Section 2.14 shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth supersede any provisions in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment 2.13 or Incremental Revolving Credit Commitment (but such certification shall not be required Section 10.01 to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated)contrary.
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 2 contracts
Sources: Revolving Credit Agreement (MSCI Inc.), Revolving Credit Agreement (MSCI Inc.)
Increase in Commitments. Borrowers may request an increase in Revolver Commitments, Capital Expenditure Loan Commitments and Term Loan Commitments from time to time upon notice to Agent, as long as (a) The (x) U.S. Borrower may, by written notice the requested increase is in a minimum amount equal to the Administrative Agent at any time after lesser of (i) $10,000,000, or (ii) the Closing Datebalance of the amount available under clause (b), request and is offered on one or more occasions Incremental Term the same terms as existing Revolver Commitments, Capital Expenditure Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, as applicable, except for fees which shall be determined by the Borrowers and the applicable Lenders, (b) increases under this Section do not exceed $100,000,000 in an aggregate principal amount the aggregate, (together with all Incremental Equivalent Debt outstanding at such timec) no reduction in Commitments pursuant to Section 2.1.4 has occurred prior to the requested increase, (d) the requested increase does not cause the Commitments and Term Loans to exceed 90% of any applicable cap under any Subordinated Debt agreement, (e) no Default or Event of Default shall have occurred and be continuing. Agent shall promptly notify Lenders of the Incremental Facility Maximum Amount from one requested increase and, within 10 Business Days thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase its Revolver Commitment, Capital Expenditure Loan Commitments or more Incremental Term Lenders or Incremental Revolving Credit LendersLoan Commitment, as applicable, which may include any existing . Any Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any not responding within such existing Lender does not respond to such written notice within five (5) Business Days, such Lender period shall be deemed to have declined an increase. If Lenders fail to participate therein) and commit to the full requested increase, Eligible Assignees may issue additional banksRevolver Commitments, financial institutions and other institutional lenders who will become Incremental Capital Expenditure Loan Commitments or Term Lenders and/or Incremental Revolving Credit LendersLoan Commitments, as applicable, in connection therewith; providedand become Lenders hereunder. Agent may allocate, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental the increased Revolver Commitments, Capital Expenditure Loan Commitments or Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term as applicable, among committing Lenders and, if necessary, Eligible Assignees. Provided that conditions in this Section 2.1.7 and 6.2 are satisfied, total Revolver Commitments, Capital Expenditure Loan Commitments or commitments Term Loan Commitments, as applicable, shall be increased by the requested amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, but no later than 45 days following Borrowers’ increase request. Agent, Borrowers, and new and existing Lenders shall execute and deliver such documents and agreements as Agent deems appropriate to make term loans with terms different from evidence the Closing Date increase in and allocations of Revolver Commitments, Capital Expenditure Loan Commitments or Term Loans (“Other Term Loans”) and (iv) in Loan Commitments, as applicable. On the case effective date of Other Term an increase, all outstanding Revolver Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. LC Obligations. Notwithstanding anything contained herein to , other exposures under the contraryRevolver Commitments, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Capital Expenditure Loan Commitments and based on Term Loan Commitments, as applicable shall be reallocated among Lenders, and settled by Agent if necessary, in accordance with Lenders’ adjusted shares of such Commitments. The terms and provisions of the incremental Capital Expenditure Loans and Revolver Loans will be identical to the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver applicable to the Administrative Agent an Additional Credit Extension Amendment existing Revolver Loans and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Capital Expenditure Loans, as applicable, to be made thereunder; provided, that (i) . The terms and provisions of the final maturity date of any Other incremental Term Loans shall be no earlier than the Latest Maturity Date, as set forth in a joinder agreement; provided that (iia) the weighted average life to maturity of any Other incremental Term Loans Loan shall be no shorter than the weighted average life to maturity of the Closing Date existing Term Loan, (b) the final maturity date of any incremental Term Loan shall be no earlier than the Term Loan Maturity Date, (c) incremental Term Loans and shall not participate on a greater (but may participate on a lesser) than pro rata basis with the existing Term Loan in any outstanding optional or mandatory prepayment hereunder, (d) the incremental Term Loans may be unsecured or secured by the Collateral on a pari passu or junior basis, (e) the effective interest rate for the Incremental Term Loans shall not be more than 0.50% per annum greater than the effective interest rate for the existing Term Loans and (iiif) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The all other terms of the Incremental incremental Term Loans and the Additional Credit Extension Amendment to the extent Loans, if not inconsistent consistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other existing Term Loans, must be reasonably acceptable to the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same ClassAgent.
Appears in 2 contracts
Sources: First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.), First Lien Loan and Security Agreement (Duckhorn Portfolio, Inc.)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at At any time after the Closing Amendment No. 4 Effective Date but prior to the Business Day immediately preceding the Maturity Date, request on the Borrower may effectuate one or more occasions Incremental Term Loan increases in the Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower mayeach such increase being a “Commitment Increase”), by written notice to the Administrative Agent at any time after the Closing Date, request on designating either one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed of the Incremental Facility Maximum Amount from one or more Incremental Term existing Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate which, in its sole discretion; provided that if any such existing Lender does not respond , may determine whether and to such written notice within five (5) Business Days, such Lender shall be deemed to have declined what degree to participate thereinin such Commitment Increase) and additional banks, financial institutions and or one or more other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further Eligible Assignees that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to at the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments oftime agree, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000any such Eligible Assignee that is an existing Lender to increase its Commitment as such Lender shall so select (an “Increasing Lender”) and, in the case of Incremental Term Loan Commitments denominated in Euroany other Eligible Assignee that is not an existing Lender (an “Additional Lender”), €1,000,000 and to become a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency party to this Agreement as a Lender; provided, however, that (which currency i) each such Commitment Increase shall be reasonably acceptable equal to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree)at least $10,000,000, (ii) all Commitments and Advances provided pursuant to a Commitment Increase shall be available on the date on same terms as those applicable to the corresponding type of Commitments and Advances except as to upfront fees which may be as agreed to between the Borrower and such Incremental Term Loan Commitments Increasing Lender or Incremental Revolving Credit Commitments are requested Additional Lender, as the case may be, and (iii) the aggregate of all such Commitment Increases shall not exceed $20,000,000. The Borrower shall provide prompt notice of such proposed Commitment Increase pursuant to become effective (which this Section 2.16 to the Administrative Agent and the Lenders. This Section 2.16 shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed construed to by create any obligation on the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are or any Lender to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments advance or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are commit to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein advance any credit to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are Borrower or to be Revolving Commitments and based on arrange for any other Person to advance or to commit to advance any credit to the terms and conditions set forth herein for Revolving Commitments and Revolving LoansBorrower.
(b) The Applicable Borrower Commitment Increase shall become effective on the date (the “Increase Date”) on or prior to which each of following conditions shall have been satisfied: (i) the receipt by the Administrative Agent of (A) an agreement in form and each Incremental Term Lender shall execute and deliver substance reasonably satisfactory to the Administrative Agent an signed by the Borrower, each Increasing Lender and/or each Additional Credit Extension Amendment Lender, setting forth the Commitments, if any, of each such Increasing Lender and/or Additional Lender and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Lender, and (B) such evidence of appropriate authorization on the part of the Borrower with respect to such Commitment Increase and such other documentation legal opinions as the Administrative Agent shall may reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Daterequest, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity funding by each Increasing Lender and Additional Lender of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect Advances to any Other Term Loans be made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by Lender to effect the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions requirement set forth in Section 4.02(iii2.6(c), (iii) shall be satisfied immediately receipt by the Administrative Agent of a certificate of an authorized officer of the Borrower certifying (A) both before and after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment Increase, no Default has occurred and is being used to consummate a Limited Condition Acquisition) and thatcontinuing, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any all representations and warranties to be made at by the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement Borrower in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be this Agreement are true and correct in all material respects (except for those that such materiality qualifier shall not be applicable to any representations and warranties that already are conditioned qualified or modified by “materiality” materiality in the text thereof), unless such representation or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate warranty relates to an earlier date, in date which case such representations and warranties shall have been remains true and correct in all material respects as of such earlier date (except for those that such materiality qualifier shall not be applicable to any representations and warranties that already are conditioned qualified or modified by “materiality” materiality in the text thereof), and (C) the pro forma compliance with the covenant in Section 6.16, after giving effect to such Commitment Increase, and (iv) receipt by the Increasing Lender or “material adverse effect”Additional Lender, which shall have been true as applicable, of all such fees as agreed to between such Increasing Lender and/or Additional Lender and correct in all respectsthe Borrower.
(c) on Notwithstanding any provision contained herein to the contrary, from and as after the date of such earlier date; provided that Commitment Increase, all calculations and payments of interest on the Advances shall take into account the actual Commitments of each Lender and the principal amount outstanding of each Advance made by such Lender during the relevant period of time.
(d) On any Increase Date, each Revolving Lender’s share of the applicable Letter of Credit Exposure on such date shall automatically be deemed to the extent that the proceeds equal such Revolving Lender’s Pro Rata Share of Loans under any Incremental such Letter of Credit Obligations (such Pro Rata Share for such Revolving Credit Commitments and/or Incremental Term Loan Commitments are Lender to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required determined as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of Increase Date after giving effect to such Commitment Increase) without further action by any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loanparty.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 2 contracts
Sources: Credit Agreement (Nine Energy Service, Inc.), Credit Agreement (Nine Energy Service, Inc.)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice Subject to the Administrative Agent terms and conditions hereof, at any time after subject to the Closing Dateterms and conditions hereof, the Borrower may request on to add one or more occasions term loan facilities (each, an “Incremental Term Loan Commitment” and the term loans thereunder, an “Incremental Term Loan”) and/or increases in the Revolving Commitments and/or (it being understood that the aggregate amount of all such increases in the Revolving Commitments shall not exceed $100,000,000 in the aggregate at any one time) (each, an “Incremental Revolving Credit Commitments Commitment” and (y) the EMEA Borrower mayloans thereunder, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions “Incremental Revolving Loans”; each Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Commitment and each Incremental Revolving Credit Lenders, Commitment are each sometimes referred to herein individually as applicable, which may include any existing an “Incremental Facility” and collectively as the “Incremental Facilities”). No Lender (each of which shall be entitled to agree or decline obligated to participate in its sole discretion; provided that if any Incremental Facility, and each Lender’s determination to participate in any such existing Incremental Facility (to the extent invited to participate) shall be in such Lender’s sole and absolute discretion. The Administrative Agent shall invite each Revolving Lender does to provide a portion of each requested Incremental Revolving Commitment ratably in accordance with its Revolving Percentage (it being agreed that no Revolving Lender shall be obligated to provide an Incremental Revolving Commitment and that any Revolving Lender may elect to participate in such Incremental Revolving Commitment in an amount that is less than its Revolving Percentage of such requested Incremental Revolving Commitment or more than its Revolving Percentage of such requested Incremental Revolving Commitment if other Revolving Lenders have elected not respond participate in any applicable requested Incremental Revolving Commitment) and to such written notice within the extent, five (5) Business DaysDays after receipt of invitation, sufficient Revolving Lenders do not agree to provide such Incremental Revolving Commitment in connection with such proposed Incremental Revolving Commitment on terms acceptable to the Borrower, then the Borrower may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Incremental Revolving Commitment. The Borrower may invite any Lender, or any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with a requested Incremental Term Loan, to provide all or any portion of a requested Incremental Term Loan. Any Incremental Facility shall be deemed in the amount of at least $1,000,000 (or such lower amount that represents all remaining availability pursuant to have declined to participate thereinthis Section 2.25) and additional banks, financial institutions and other institutional lenders who will become integral multiples of $500,000 in excess thereof (or such lower amount that represents all remaining availability pursuant to this Section 2.25). There shall not be more than five (5) Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject Facilities (or such larger number to the approval of (i) which the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent may agree in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make during the term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lenderthis Agreement. The U.S. Borrower parties hereto acknowledge and each agree that an Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing DateFacility, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)funded, then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differentialmay, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time of its institution, cause the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as total amount of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect Obligations to the applicable Type of Loanexceed $150,000,000.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (DoubleVerify Holdings, Inc.), Amendment and Restatement Agreement (DoubleVerify Holdings, Inc.)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Aggregate Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to automatically increase by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans Acquisition Increase Amount on the date such Term Loans are made exceeds (the Adjusted Eurocurrency Rate“Acquisition Increase Date”) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, which the Administrative Agent shall have received a certificate dated as of such Acquisition Increase Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower certifying that all of the following conditions set forth in Section 4.02(iiihave been fully satisfied: (i) the Acquisition Closing Date shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required have occurred prior to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing Acquisition Termination Date in accordance with the amounts provided for in clause (B) terms of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis Acquisition Agreement (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after without giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitmentamendment, modification, consent or waiver thereto (including, without limitation, any updates to the borrowings thereunder exhibits, annexes and schedules thereto) that is materially adverse to the interests of the Lenders (in their capacity as such), unless the Administrative Agent and the application of proceeds therefromRequired Lenders have delivered their prior written consent thereto, such consent not to be unreasonably withheld or delayed), (Aii) no Event of Default shall have occurred and be continuing; provided thatexists, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (Biii) the representations and warranties contained herein in Article V (including without limitation the representation and warranties set forth in Sections 5.04(c) and 5.05) and the other Loan Documents shall be are true and correct in all material respects on and as of such date (except for those representations and warranties that are conditioned or if qualified by “materiality” materiality or “material adverse effect”, which shall be true and correct in all respects; provided that the representation and warranty made in Section 5.12(a) on is true and as of such date to the same extent as though made on and as of that datecorrect in all respects), except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.15(a), the representations and warranties contained in subsections (a) and (b) of Section 5.04 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, (iv) any fees and expenses required to be paid on or before the Acquisition Increase Date pursuant to the terms of the Fee Letters shall have been paid, and (v) the Administrative Agent shall have received satisfactory evidence that the Company Credit Agreement and the Rice Midstream Holdco Credit Agreement, as each of such terms is defined in the Acquisition Agreement, have been terminated and all amounts due and payable thereunder have been paid in full. Each Lender’s Commitment shall increase by its Pro Rata Share of the Acquisition Increase Amount on the Acquisition Increase Date as reflected on Schedule 2.01.
(b) Provided there exists no Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders) after the earlier to occur of the Acquisition Increase Date or the Acquisition Termination Date, the Borrower may on a one-time basis request an increase in the Aggregate Commitments by an amount not exceeding $500,000,000; provided that any such request for an increase shall be in a minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Pro Rata Share of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel.
(c) If the Aggregate Commitments are increased in accordance with Section 2.15(b), the Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, the Borrower shall have provided to the Administrative Agent the following, in form and substance satisfactory to the Administrative Agent:
(i) copies of corporate resolutions certified by the Secretary or Assistant Secretary of the Borrower, or such other evidence as may be satisfactory to the Administrative Agent, demonstrating that Borrower’s incurrence of indebtedness hereunder in the amount of the Aggregate Commitments as increased pursuant to Section 2.15(b) and with a maturity date of the Stated Maturity Date then in effect, has been duly authorized by all necessary corporate action, together with an opinion of counsel to the Borrower (which may be internal counsel) to such effect, and
(ii) a certificate dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V (including without limitation the representation and warranties set forth in Sections 5.04(c) and 5.05) and the other Loan Documents are true and correct in all material respects on and as of the Increase Effective Date (except for those representations and warranties that are conditioned or if qualified by “materiality” materiality or “material adverse effect”, which shall have been true and correct in all respects; provided that the representation and warranty made in Section 5.12(a) on is true and correct in all respects), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date; provided , and except that for purposes of this Section 2.15(c), the representations and warranties contained in subsections (a) and (b) of Section 5.04 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) no Default exists.
(d) The Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent that necessary to keep the proceeds of outstanding Committed Loans ratable with any revised Pro Rata Shares arising from any nonratable increase in the Commitments under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of LoanSection.
(fe) Each of the parties hereto hereby agrees that the Administrative Agent may take This Section shall supersede any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included provisions in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, Sections 2.12 or 10.01 to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Classcontrary.
Appears in 2 contracts
Sources: Extension Agreement and First Amendment to Second Amended and Restated Credit Agreement (EQT Corp), Credit Agreement (EQT Corp)
Increase in Commitments. (a) The (x) U.S. Borrower At any time that no Default has occurred and is continuing and the Permitted Sale-Leaseback has been consummated resulting in no less than $200,000,000 of Net Disposition Proceeds, ACT may, by written notice to the Administrative Agent at any time after the Closing DateAgents, request that on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments the terms and (y) the EMEA Borrower may, by written notice subject to the Administrative Agent at conditions contained in this Agreement, the Lenders or Eligible Assignees (not then a party to this Agreement) provide up to an aggregate amount of $100,000,000 (or such lesser amount then permitted by the terms of Subordinated Debt) in additional loan commitments consisting of revolving loan commitments denominated in any time after Currency (the Closing Date, request on one or more occasions Incremental “Additional Revolving Loan Commitments”) and/or term loan commitments denominated in any Currency (the “Additional Term Loan Commitments”, in an aggregate principal amount (together and collectively, with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Additional Revolving Credit LendersLoan Commitments, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed“Additional Loan Commitments”), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date Upon receipt of such notice, unless otherwise agreed to by the Administrative Agent in its Agents shall use commercially reasonable discretion)efforts to arrange for the Lenders to provide such Additional Loan Commitments; provided, (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as Agents will first offer each of the Administrative Agent shall reasonably specify to evidence Lenders that then has a Percentage of the Incremental Term Revolving Loan Commitment of such Incremental or has outstanding Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, a pro rata portion (based upon the applicable Revolving Loan Commitment Amount or applicable aggregate outstanding principal amount of Term Loans, as applicable, at such time) of any such Additional Loan Commitments. Alternatively, any Lender may commit to be made thereunder; providedprovide the full amount of the requested Additional Loan Commitments and then offer portions of such Additional Loan Commitments to the other Lenders or Eligible Assignees, subject to the proviso in the immediately preceding sentence. Nothing contained in this Section or otherwise in this Agreement is intended to commit any Lender or any Agent to provide any portion of any such Additional Loan Commitments. If and to the extent that any Lenders or Eligible Assignees agree, in their sole discretion, to provide any Additional Revolving Loan Commitments, (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which applicable Revolving Loan Commitment Amount shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”of the Additional Revolving Loan Commitments agreed to be so provided, (ii) the Percentages of the respective Lenders in respect of the applicable Revolving Loan Commitment shall be proportionally adjusted, as applicable, applicable to (iii) at such Term Loans on time and in such manner as ACT and the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if Canadian Administrative Agent shall agree, the Lenders making such Other Term shall assign and assume outstanding applicable Revolving Loans receive any upfront fee or similar fees (including original issue discount where and participations in outstanding applicable Letters of applicable Credit and applicable Swing Line Loans so as to cause the amount of such discount is equated applicable Revolving Loans and participations held by each Lender to interest based on an assumed four conform to the respective percentages of the applicable Revolving Loan Commitments of the Lenders and (4iv) year life the Borrowers shall execute and deliver (or cause to maturity, but excluding be executed and delivered) any arrangement, underwriting, structuring additional Notes or similar fees) directly other amendments or indirectly from the Applicable Borrower modifications to this Agreement or any Subsidiaryother Loan Document as the Administrative Agents may reasonably request and acceptable to ACT (acting reasonably). If and to the extent that any Lenders or Eligible Assignees agree, in their sole discretion, to provide any such Additional Term Loan Commitments, (i) the Borrowers shall deliver to the Administrative Agents an applicable term loan commitment addendum, in form and substance acceptable to the Administrative Agents, setting forth the aggregate amount of the requested Additional Term Loan Commitments and the applicable Percentage of each Lender or Eligible Assignee providing such upfront fee or similar divided Additional Term Loan Commitments, (ii) the interest rate applicable to additional term loans shall be mutually agreed upon at the time the Additional Term Loan Commitments are provided (but after giving effect to the then prevailing ▇▇▇▇-to-market of Term Loans then outstanding in the secondary trading of such Term Loans, as determined by the lesser of Arrangers), (Aiii) unless specifically set forth herein or in the average life to maturity of such Other Term Loans and (B) four. The applicable term loan commitment addendum, all other terms of the Incremental Additional Term Loans and shall be identical to those of the Additional Credit Extension Amendment U.S. Term Loans or Canadian Term Loans (but after giving effect to the extent not inconsistent with then prevailing ▇▇▇▇-to-market of Term Loans then outstanding in the terms specified in clauses (isecondary trading of such Term Loans, as determined by the Arrangers), (ii) as applicable, and (iiiiv) above the Borrowers shall otherwise be execute and deliver any additional Notes or other amendments or modifications to this Agreement or any other Loan Document as agreed among the Applicable Borrower, the Administrative Agent Agents may reasonably request and the Incremental Term Lenders and reasonably satisfactory acceptable to ACT (acting reasonably). Any request by ACT under this Section shall be binding on all Obligors. The parties hereto agree that the Administrative AgentAgents are entitled to execute on behalf of the Secured Parties any amendments or modifications reasonably required to effectuate the foregoing. The Administrative Agent shall promptly notify each Lender as have the right to set forth the conditions precedent to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 1 contract
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions occasions, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed $50,000,000 (provided that the aggregate amount of all Incremental Facility Maximum Amount Revolving Credit Commitments shall not exceed $10,000,000) from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith); provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreementdiscretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), Agent) and (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations). Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date, Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans Loans, and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Dateprovided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield sum of (A) the margin then in effect for Term Loans that are Eurocurrency Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”)Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurocurrency Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturitymaturity or, if the actual maturity date falls earlier than four years, the lesser number of years, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from Holdings, the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement to the extent not inconsistent consistent with the terms specified in clauses (i), (ii) and (iii) above applicable to the Term Loans hereunder shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative AgentAgent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on Holdings, the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced therebythereby as provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower (any such amendment, an “Incremental Amendment”) and furnished to the other parties hereto, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights in right of payment and prepayment and voting security with the initial Term Loans and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate certifying to that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to dated such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate date and executed by a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) Financial Officer of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromBorrower, (Aii) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in respect of any Incremental Term Loans or Incremental Revolving Loans by pro forma compliance with the date and time required hereunder with respect to the applicable Type of Loancovenants set forth in Section 7.07.
(fe) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of Loans.
(f) Each Incremental Revolving Loan shall contain terms and provisions identical to the same Classterms and conditions applicable to the Revolving Facility.
Appears in 1 contract
Increase in Commitments. (a) The (x) U.S. Subject to the terms and conditions set forth herein, the Administrative Borrower mayshall have the right to request, by written notice to the Administrative Agent at any time after Agent, increases in the Closing Date, request on one or more occasions Incremental Term Loan Legacy Commitments and the ETMC Commitments and/or Incremental (a “Revolving Commitment Increase”) in an aggregate amount not to exceed $100,000,000; provided that (i) any Revolving Commitment Increase shall be on the terms (including the Maturity Date) and pursuant to the documentation applicable to the Revolving Credit Facilities, (ii) the Administrative Borrower shall only be permitted to request three Revolving Commitment Increases during the term of this Agreement and (v) any Revolving Commitment Increase shall be in a minimum amount of $5,000,000.
(b) Each notice submitted pursuant to this Section 2.14 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify (x) the amount of the increase in the Commitments being requested and (y) whether such increase is requested for the EMEA Borrower mayETMC Commitments or the Legacy Commitments. Upon receipt of a Revolving Commitment Increase Notice, by written notice the Administrative Agent may (at the direction of the Administrative Borrower) promptly notify the Lenders under the applicable Revolving Credit Facility and each such Lender may (subject to the Administrative Agent at Borrower’s consent) have the right to elect to have its Commitment increased by its Applicable Pro Rata Share (it being understood and agreed that a Lender may elect to have its Commitment increased in excess of its Applicable Pro Rata Share in its discretion if any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing other Lender (each of which shall be entitled to agree or decline declines to participate in the Revolving Commitment Increase) of the requested increase in Commitments; provided that (i) each applicable Lender may elect or decline, in its sole discretion; provided , to have its Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Commitment unless it, in its sole discretion, so agrees and, if any such existing a Lender does not fails to respond to such written notice any Revolving Commitment Increase Notice within five ten (510) Business DaysDays after such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate thereinin such Revolving Commitment Increase; (ii) and if any Lender declines to participate in any Revolving Commitment Increase and, as a result, commitments from additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, are required in connection therewith; providedwith the Revolving Commitment Increase, further that each Incremental Term Lender or if the Administrative Borrower does not instruct the Administrative Agent to initially request increases of the existing Lenders and Incremental commitments of additional lenders are sought in connection with the Revolving Credit LenderCommitment Increase, if not already a Lender hereunder, any Person or Persons providing such commitment shall be subject to the approval written consent of (i) the Administrative Agent in its reasonable discretion and the Swing Line Lenders and with respect to Revolving Commitment Increases for the Legacy Commitments, the L/C Issuers (each such consent not to be unreasonably withheld, conditioned withheld or delayed), to the extent the Administrative Agent in each case, if such consent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement Section 11.07; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase and (iiiv) no L/C Issuer or Swing Line Lender shall be required to act in connection with Incremental such capacity under the Revolving Credit Commitments only, each LC Issuer, Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to the extent such consent would have been required for assignments of participate in any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth Commitment Increase (i) the amount of the Incremental Term each an “Increase Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative AgentLender”), such minimum increments Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Applicable Borrower Increase Loan Lenders and the Administrative Agent Borrower, which date shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days as soon as practicable after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms receipt of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that Commitment Increase Notice (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii)date, the “MFN ProtectionIncrease Date”). As used in ; provided that the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, establishment of such Revolving Commitment Increase shall be equal subject to the sum satisfaction of each of the following conditions: (1) (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” no Default or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus Event of Default would exist after giving effect thereto or (y) if the Lenders making such Other Term Loans receive any upfront fee Revolving Commitment Increase is used to finance a Permitted Acquisition or similar fees Permitted Investment, no Event of Default pursuant to Section 9.01(a) or 9.01(f) exists; (including original issue discount where 2) the amount of such discount is equated Revolving Commitment Increase shall be effected pursuant to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring one or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided more joinder agreements executed and delivered by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Administrative Borrower, the Administrative Agent Agent, and the Incremental Term Lenders Increase Loan Lenders, each of which shall be reasonably satisfactory to the Administrative Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Loan Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Loan Documents, legal opinions and other documents as the Administrative Agent may reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
; (c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B4) the representations and warranties contained herein and in the other Loan Documents Article VI shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except respects to the extent such representations and warranties specifically relate that any representation or warranty is qualified by materiality) as of the Increase Date; provided that, if the Revolving Commitment Increase is used to an earlier datefinance a Permitted Acquisition or a Permitted Investment, in which case such the representations and warranties shall have been true be subject to customary “Sungard” limitations; and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which 5) the Borrowers shall have been true and correct in all respects) on and as of such earlier date; provided that paid to the extent that Administrative Agent and the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are Lenders such additional fees as may be agreed to be used to finance a Limited Condition Acquisitionpaid by the Borrowers in connection therewith.
(c) On the Increase Date, then upon fulfillment of the accuracy of representations and warranties as described conditions set forth in this clause Section 2.14, (Bi) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received effect a Notice settlement of Borrowing in respect of any Incremental Term all outstanding Loans or Incremental under the applicable Revolving Loans by Credit Facility among the date and time required hereunder with respect applicable Lenders that will reflect the adjustments to the Commitments under the applicable Type Revolving Credit Facility of Loanthe applicable Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Loan Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) Revolving Credit Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Revolving Credit Note.
(fd) Each The terms and provisions of the parties hereto hereby agrees that Revolving Commitment Increase shall be identical to the Loans and the Commitments under the applicable Revolving Credit Facility. Without limiting the generality of the foregoing, (i) Commitment Fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rates applicable to the existing Loans under the applicable Revolving Credit Facility, (ii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Loans under the applicable Revolving Credit Facility, (iii) after giving effect to such Revolving Commitment Increases, Commitments under the applicable Revolving Credit Facility shall be reduced based on each such Lender’s Applicable Pro Rata Share, and (iv) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the existing Loans under the applicable Revolving Credit Facility. Each joinder agreement and any amendment to any Loan Document requested by the Administrative Agent may take in connection with the establishment of the Revolving Commitment Increase may, without the consent of any of the Lenders, effect such amendments to this Agreement and all action the other Loan Documents as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans)or appropriate, when originally made, are included in each Borrowing the opinion of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent and the Administrative Borrower, to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in provisions of this Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class2.14.
Appears in 1 contract
Increase in Commitments. Subject to the terms and conditions set forth herein, the Company shall have the right, from time to time and upon at least ten (a10) The Business Days’ (xor such shorter period as may be agreed by the Administrative Agent) U.S. Borrower may, by prior written notice to the Administrative Agent (an “Incremental Request”), to request to add one or more tranches of term loans (the “Incremental Term Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) and/or increase the Aggregate Revolving Commitments (the “Incremental Revolving Commitments”; and revolving loans made thereunder the “Incremental Revolving Loans”; the Incremental Revolving Loans, together with the Incremental Term Loans are referred to herein as the “Incremental Facility Loans”) subject, however, in any such case, to satisfaction of the following conditions precedent:
(a) the aggregate amount of all Incremental Facility Loans effected pursuant to this Section 2.14 shall not exceed the sum of (x) $250,000,000 (the “Fixed Incremental Amount”) plus the maximum principal amount of Indebtedness that may be incurred at such time that would not cause the Consolidated Debt to EBITDA Ratio to exceed 3.00:1.00 on a Pro Forma Basis (the “Ratio Incremental Amount”); provided, that, each Incremental Facility Loan shall be deemed to be incurred first under the Ratio Incremental Amount with the balance incurred under the remaining Fixed Incremental Amount, unless the Company otherwise elects pursuant to a written notice to make such incurrence or increase in a different order; provided, further, any Incremental Facility Loan incurred under the Fixed Incremental Amount may be reclassified at any time, as the Company may elect from time to time, as incurred under the Ratio Incremental Amount if the Company meets the applicable ratio under the Ratio Incremental Amount at such time on a Pro Forma Basis at any time after subsequent to the Closing Date, request on one or more occasions incurrence of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitmentswould have met such ratio, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Dayscase, such Lender reclassification shall be deemed to have declined automatically occurred if not elected by the Company);
(b) on the date on which any Incremental Facility Amendment is to participate thereinbecome effective, both immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility Loans (assuming that the full amount of the Incremental Facility Loans shall have been funded on such date) and additional banksany related transactions, financial institutions no Default shall have occurred and other institutional lenders who will become be continuing (but subject to Section 1.10 with respect to any Incremental Term Lenders and/or Facility the proceeds of which will be used to finance any Limited Condition Transaction);
(c) after giving effect to the incurrence of such Incremental Revolving Credit LendersFacility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Loan Parties shall be in compliance with the financial covenants set forth in Section 7.13 (but subject to Section 1.10 with respect to any Incremental Term Facility the proceeds of which will be used to finance any Limited Condition Transaction);
(d) the representations and warranties set forth in Article V shall be true and correct in all material respects on and as applicableof the date on which such Incremental Facility Amendment is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in connection therewithwhich case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this clause (d), the representations and warranties contained in clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 (but subject to Section 1.10 with respect to any Incremental Term Facility the proceeds of which will be used to finance any Limited Condition Transaction);
(e) unless otherwise agreed by the Administrative Agent, such Incremental Facility Loans shall be in a minimum amount of $25,000,000 and in integral multiples of $5,000,000 in excess thereof; provided, further that each such Incremental Facility Loans may be in an amount equal to the remaining aggregate amount of Incremental Revolving Commitments and Incremental Term Lender and Loans permitted to be obtained pursuant to clause (a) above;
(f) any Incremental Revolving Credit Lender, if not already a Lender hereunder, Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.01(a);
(g) any Incremental Term Loans that constitute additional term loans under a then existing tranche of term loans shall be made on the same terms and provisions (other than upfront fees) as apply to such outstanding term loans, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loans;
(h) any Incremental Term Loans that do not constitute additional term loans under a then existing tranche of term loans shall: (A) rank pari passu in right of payment priority with the Revolving Loans, (B) share ratably in rights in the Collateral and the Guaranty, (C) have a maturity date that is no earlier than the then-latest Maturity Date for any Loans, (D) have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of any then-existing Incremental Term Loan (it being understood that, subject to the approval foregoing, the amortization schedule applicable to such Incremental Term Loans shall be determined by the Company and the Lenders of such Incremental Term Loans) and (E) otherwise be on terms not materially more onerous, taken as a whole, to the Company than the existing Loans (except to the extent permitted above with respect to (i) the maturity date, (ii) amortization, (iii) the interest rate, and fees, (iv) other than terms which are applicable only after the then-latest Maturity Date or (v) other terms that are otherwise reasonably satisfactory to the Administrative Agent);
(i) the Administrative Agent shall have received additional commitments in its reasonable discretion a corresponding amount of such requested Incremental Facility Loans from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would it being understood and agreed that no existing Lender shall be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and provide an additional commitment);
(iij) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably agree), (ii) request relating to the date on which corporate or other necessary authority for such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after Facility Loans and the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment validity of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Facility Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans other matters relevant thereto, all in form and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and substance reasonably satisfactory to the Administrative Agent. The ; and
(k) each Incremental Term Facility and any Incremental Revolving Commitments shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.14 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent shall promptly notify and each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms providing a portion of the Incremental Term Loan Commitment or Facility and/or Incremental Revolving Credit CommitmentCommitments, as applicable; which such amendment, evidenced therebywhen so executed, without requiring shall amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the consent of Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.14. Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing such Incremental Term Loan Commitments or Loans and/or Incremental Revolving Credit Commitments.
(c) All , as applicable, and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Term Loans made Facility Amendment shall be subject solely to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless satisfaction on the date thereof of such effectiveness, the Administrative Agent shall have received a certificate certifying that each of the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to above and such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to other conditions as requested by the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing Lenders under the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is Loans established in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated)connection therewith.
(el) Immediately after giving effect to This Section shall supersede any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, provisions in Section 2.13 or 10.01 to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loancontrary.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 1 contract
Sources: Second Amendment to Second Amended and Restated Credit Agreement (Methode Electronics Inc)
Increase in Commitments. Borrowers may request an increase in Revolver Commitments or an additional term loan commitment (each an “Incremental Term Loan Commitment” and each term loan provided thereunder in accordance with the terms and conditions of this Section 2.1.7, an “Incremental Term Loan”) from time to time upon notice to Agent, as long as (a) The (x) U.S. Borrower may, by written notice the requested increase to the Administrative Agent at any time after the Closing Date, request on one Revolver Commitments or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit LendersCommitment, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate is in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject minimum amount equal to the approval lesser of (i) $10,000,000, or (ii) the Administrative Agent in its reasonable discretion balance of the amount available under clause (such consent not to be unreasonably withheld, conditioned or delayedc), (b)(i) with respect to an increase in the extent Revolver Commitments, is offered on the Administrative Agent would same terms as existing Revolver Commitments, except for fees which shall be required to consent to determined by the assignment of any Loans or Commitments to such Incremental Term Lender Borrowers and Incremental Revolving Credit Lender pursuant to this Agreement the applicable Lenders, and (ii) in connection with Incremental Revolving Credit Commitments only, respect to each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments ofCommitment, in the case of each Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based offered on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Datein this Section 2.1.7, (iic) increases under this Section 2.1.7 do not exceed $75,000,000 in the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and aggregate, (iiid) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans an increase in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)Revolver Commitments, then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used no reduction in the Revolver Commitments pursuant to Section 2.1.4 has occurred prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”requested increase, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Default or Event of Default shall have occurred and be continuing; provided that, . Agent shall promptly notify Lenders of the requested increase to the Revolver Commitments or Incremental Term Loan Commitments, as applicable and, within 10 Business Days thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase its Revolver Commitment or Incremental Term Loan Commitment, as applicable. Any Lender not responding within such period shall be deemed to have declined an increase. If Lenders fail to commit to the full requested increase, Eligible Assignees may issue additional Revolver Commitments or Incremental Term Loan Commitments, as applicable, and become Lenders hereunder. Agent may allocate, in its reasonable discretion, the increased Revolver Commitments or Incremental Term Loan Commitments, as applicable, among committing Lenders and, if necessary, Eligible Assignees. Provided that conditions in this Section 2.1.7 and 6.2 are satisfied, total Revolver Commitments or Incremental Term Loan Commitments, as applicable, shall be increased by the requested amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, but no later than 90 days following Borrowers’ increase request. Agent, Borrowers, and new and existing Lenders shall execute and deliver such documents and agreements as Agent deems appropriate to evidence the increase in and allocations of Revolver Commitments or Incremental Term Loans, as applicable. On the effective date of an increase, all outstanding Revolver Loans, LC Obligations and other exposures under the Revolver Commitments and Incremental Term Loan Commitments, as applicable, shall be reallocated among Lenders, and settled by Agent if necessary, in accordance with Lenders’ adjusted shares of such Commitments. The terms and provisions of the incremental Revolver Loans will be identical to the terms and conditions applicable to the existing Revolver Loans. The terms and provisions of any Incremental Term Loans shall be applied to consummate as set forth in a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier datejoinder agreement; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (Ba) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by not participate on a greater (but may participate on a lesser) than pro rata basis with the aggregate principal amount of such existing Loans in any optional or mandatory prepayment hereunder, (b) the Incremental Term Loans may be unsecured or secured by the Collateral on a pari passu or junior basis, but shall not be secured by any of the same ClassExclusive Revolver Loan/Letter of Credit Collateral or the Exclusive Term Loan/Capital Expenditure Loan Collateral, (c) any mandatory or optional prepayments with respect any Incremental Term Loan shall be mutually agreed to by Borrowers and Lenders, (d) any Incremental Term Loan shall be secured pursuant to a Mortgage on a Borrower’s Real Estate not already included in the Exclusive Term Loan/Capital Expenditure Loan Collateral or not already securing another Incremental Term Loan (if any), (e) Borrowers shall deliver Related Real Estate Documents in connection with each such Mortgage, and (f) all other terms of the Incremental Term Loans must be reasonably acceptable to the Agent and the Lenders holding any portion of the Incremental Term Loans.
Appears in 1 contract
Sources: Loan and Security Agreement (Bespoke Capital Acquisition Corp)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written Upon notice to the Administrative Agent Agent, at any time after the Closing Effective Date, the Borrower may request on that Additional Revolving Credit Commitments be provided by the existing Lenders (in accordance with their Pro Rata Share), and if such Lenders are unwilling to provide such Additional Revolving Credit Commitments (it being understood that a Lender shall be deemed to be unwilling to provide such Additional Revolving Credit Commitments if it has not affirmatively responded to the Administrative Agent within 10 Business Days after ▇▇▇▇▇▇▇▇’s request), (x) the Lead Arranger will use its reasonable efforts, subject to compensation to be agreed, to obtain one or more occasions Incremental Term Loan Persons that are Eligible Assignees to provide such Additional Revolving Credit Commitments and/or Incremental (y) the Borrower may identify one or more financial institutions which are not existing Lenders (and which are not Loan Parties or Affiliates of Loan Parties) that are reasonably acceptable to the Administrative AgentPersons that are Eligible Assignees to provide such Additional Revolving Credit Commitments; provided that (i) after giving effect to any such Additional Revolving Credit Commitments, the aggregate amount of Additional Revolving Credit Commitments that have been added pursuant to this Section 2.18 shall not exceed $125,000,000160,000,000 , (ii) each request for Additional Revolving Credit Commitments shall be in minimum increments of $20,000,000, (iii) the Borrower shall not make more than five such requests for Additional Revolving Credit Commitments and (yiv) the EMEA terms of any Additional Revolving Credit Advances shall be the same as those for the existing Revolving Credit Advances, except that the Borrower may, by written notice shall be permitted to pay upfront fees to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Additional Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate Lenders in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not amounts to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligationsagreed. Notwithstanding anything contained herein to the contrary, it is acknowledged (x) the Lender Parties shall not be obligated to commit to the Additional Revolving Credit Commitments, and agreed that all Incremental (y) no Additional Revolving Credit Commitments are shall be provided except to be Revolving Commitments the extent within the limitations of the “Maximum ABL Facility Amount” under and based on as defined in the terms and conditions set forth herein for Revolving Commitments and Revolving LoansABL Intercreditor Agreement.
(b) The Applicable Any Additional Revolving Credit Commitments to provide Additional Revolving Credit Advances under this Section 2.18 shall be added to this Agreement pursuant to an amendment (the “Additional Revolving Credit Commitment Amendment”) among the Parent, the Borrower, the Administrative Agent and the Additional Revolving Credit Lenders. As conditions precedent to the effectiveness of the Additional Revolving Credit Commitment Amendment, the Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent (x) a certificate on behalf of the Borrower dated as of the effective date (the “Additional Revolving Credit Commitments Effective Date”) signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties of the Loan Parties contained in Article IV and the other Loan Documents are true and correct in all material respects on and as of the Additional Revolving Credit Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date (in which case such representations and warranties are true on and of such earlier date) and without duplication of any materiality qualifiers applicable thereto, and (ii) no Event of Default exists immediately before or immediately after giving effect to such addition, (iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 5.05 as of (A) the Additional Revolving Credit Extension Amendment Commitments Effective Date and (B) the last day of the most recently ended determination period after giving pro forma effect to such Additional Revolving Credit Commitment, the making of Additional Revolving Credit Advances in respect thereof and any Investment to be consummated in connection therewith, and (y) if any Loan Party or any of its Subsidiaries owns any Margin Stock, an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrower, together with such other documentation as the Administrative Agent shall reasonably specify request, in order to evidence enable the Incremental Term Loan Commitment Agents and the Lenders to comply with any of such Incremental Term Lenderthe requirements under Regulations T, U or X of the Board. The U.S. Borrower and On each Incremental Additional Revolving Credit Lender Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Revolving Credit Commitment (i) shall execute become a “Revolving Credit Lender” for all purposes of this Agreement and deliver the other Loan Documents and (ii) in the case of any Additional Revolving Credit Commitment, shall make an Additional Revolving Credit Advance to the Company in a principal amount equal to such Additional Revolving Credit Commitment, and such Additional Revolving Credit Advance shall be a “Revolving Credit Advance” for all purposes of this Agreement and the other Loan Documents.
(c) Any Additional Revolving Credit Commitment Amendment and any related documentation may, without the consent of any Lenders (other than Additional Revolving Credit Lenders that are party to such Additional Revolving Credit Commitment Amendment), effect such amendments to this Agreement and the other Loan Documents as may be reasonably necessary, in the reasonable opinion of the Administrative Agent an (in consultation with the Borrower), to effect the provisions of this Section 2.18. Any Additional Revolving Credit Extension Amendment and such other documentation as Advances made pursuant to this Section 2.18 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 9.07(d).
(d) This Section 2.18 shall reasonably specify supersede any provisions in Section 9.01 to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lendercontrary. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date Notwithstanding any other provision of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii)Loan Document, the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined Loan Documents may be amended by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory Loan Parties, if necessary, to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as provide for terms applicable to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 1 contract
Increase in Commitments. (a) The After the Closing Date but prior to the Maturity Date, the Borrower shall have the right to request from time to time additional Commitments (xcollectively, the “Additional Commitments”) U.S. in an aggregate amount that, when combined with all prior Incremental Term Loan Facilities, does not exceed $250,000,000, each which request shall be made by the Borrower may, by giving written notice (the “Additional Commitment Notice”) to the Administrative Agent at any time after such details with respect thereto as are reasonably requested by the Closing DateAdministrative Agent. Each request for Additional Commitments shall request Additional Commitments in an amount not less than $25,000,000 (or such lesser amount approved by the Administrative Agent). Upon receipt of such request, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent shall notify the existing Lenders of the requested Additional Commitments and offer each such Lender an opportunity to participate at any time after its sole discretion in the Closing Date, request on one or more occasions Incremental Term Loan Additional Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any . Any existing Lender that does not agree (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any ) to provide a portion of the proposed Additional Commitments within 10 days after receipt from the Administrative Agent of such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banksparticipation in any amount of such proposed Additional Commitments. Notwithstanding any existing Lender’s rejection of any portion of the proposed Additional Commitments, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term existing Lender and Incremental Revolving Credit Lender, if not already shall remain a Lender hereunder, shall be subject to the approval of (i) terms and conditions hereof. In addition, the Borrower and the Administrative Agent in its reasonable discretion may offer to additional proposed Lenders that qualify as Eligible Assignees (including any required consent of the Administrative Agent and/or the Swingline Lender, such consent not to be unreasonably withheld, conditioned ) the opportunity to accept all or delayed), to the extent the Administrative Agent would be required to consent to the assignment a portion of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan proposed Additional Commitments. The allocation of the Additional Commitments or among the Incremental Revolving Lenders and Eligible 50 Choice Hotels – Credit Commitments being requested Agreement (which 2018) Assignees who agree to accept any portion thereof shall be in minimum increments ofmade by the Borrower, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to consultation with the Administrative Agent). Upon the effectiveness of the Additional Commitments, such minimum increments as (i) each Eligible Assignee (that is not an existing Lender) which has been allocated any portion of the Applicable Borrower and the Administrative Agent Additional Commitments shall reasonably agree)execute an accession agreement to this Agreement, (ii) the date on Commitments of the existing Lenders which have been allocated any portion of the Additional Commitments shall be increased by such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion)amount, (iii) whether the Pro Rata Percentages of the Lenders (including the Eligible Assignees as the new Lenders) shall be adjusted to reflect such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitmentsallocations, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) if applicable, and subject to the payment of applicable amounts pursuant to Section 2.18 in connection therewith, the Borrower shall be deemed to have made such borrowings and repayments of the Revolving Loans, and the Lenders shall make such adjustments of outstanding Revolving Loans between and among them, as shall be necessary to effect the reallocation of the Commitments such that, after giving effect thereto, the Revolving Loans shall be held by the Lenders (including the Eligible Assignees as the new Lenders) ratably in accordance with their Commitments and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which Lenders (including the Eligible Assignees as the new Lenders) have agreed to increase their respective Commitments or make new Commitments in response to the Borrower’s request for an increase in the aggregate Commitments pursuant to this Section 2.24 and which other changes do not adversely affect the rights of those Lenders who do not elect to increase their respective Commitments, in each case without the consent of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving LoansLenders other than those Lenders increasing their Commitments.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to Notwithstanding the Administrative Agent foregoing, an Additional Credit Extension Amendment and such other documentation as increase in the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms aggregate amount of the Incremental Term Loans or Incremental Revolving Loans, as applicable, Commitments pursuant to Section 2.24(a) shall be made thereunder; provided, that effective only if (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” Default or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuingcontinuing on the date such increase is to become effective; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event (ii) each of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein made by the Borrower in this Agreement and in the other Loan Documents shall be true and correct in all material respects (except for those representations on and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true as of the date of the Additional Commitment Notice and correct in all respects) the date such increase is to become effective with the same force and effect as if made on and as of such date (or, if any such representation or warrant is expressly stated to the same extent as though have been made on and as of that a specific date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier specific date); provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (Biii) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date such documents and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that certificates as the Administrative Agent or its counsel may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, request relating to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making authorization of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Classincrease.
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Sources: Senior Unsecured Credit Agreement (Choice Hotels International Inc /De)
Increase in Commitments. (a) The (x) U.S. On or prior to 18 months after the Closing Date, the Borrower may, by written notice to the Administrative Agent at any time after (who shall promptly notify the Closing DateLenders), request on one or more occasions increases in the Commitments denominated in U.S. Dollars (each such increase, an “Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments Commitment”) by a minimum amount of $50,000,000 and (y1) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount of $100,000,000, or (together with all 2) such higher amount as mutually agreed between the Borrower and the Lenders.
(b) An Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which Commitment may include be provided by any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretionsuch Lender, an “Incremental Lender”); provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of consent (i) the Administrative Agent in its reasonable discretion (such consent each case, not to be unreasonably withheld, conditioned delayed or delayed), to the extent conditioned) of the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. ObligationsInitial Lender. Notwithstanding anything contained herein to the contrary, it is acknowledged no Lender shall have any obligation to agree to increase its Commitment pursuant to this Section 2.15 and agreed any election to do so shall be in the sole discretion of such Lender; provided that all with respect to any Incremental Commitment set forth in clause (a)(1), each Lender shall be obligated to increase its Commitment by such Lender’s then-existing Pro Rata Share of such Incremental Commitment.
(c) The Calculation Agent and the Borrower shall determine the effective date for such increase pursuant to this Section 2.15 (an “Incremental Commitment Effective Date”) and, if applicable, the final allocation of such increase among the Persons providing such increase; provided, that, such date shall be a Business Day at least ten (10) Business Days after delivery of the request for such increase (unless otherwise approved by the Calculation Agent) and at least 30 days prior to the end of the Revolving Credit Commitments are Period. To effect such increase, the Borrower, the applicable Incremental Lenders and the Administrative Agent (but no other Lenders or Persons) shall enter into one or more agreements, each in form and substance satisfactory to be Revolving Commitments the Borrower and based on the Administrative Agent, pursuant to which the applicable Incremental Lenders will provide the Incremental Commitments. Effective as of the applicable Incremental Commitment Effective Date, subject to the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and in this Section 2.15, each Incremental Term Lender Commitment shall execute be a Commitment (and deliver to not a separate facility hereunder) and the Administrative Agent an Additional Credit Extension Amendment and such other documentation as Advances made by the Administrative Agent shall reasonably specify to evidence the applicable Incremental Term Loan Commitment of Lenders on such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver Commitment Effective Date pursuant to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (iSection 2.15(e) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity DateAdvances, (ii) the weighted average life to maturity for all purposes of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower GuarantorAgreement.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under Notwithstanding the foregoing, the increase in the Commitments pursuant to this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification 2.15 shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including effective with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).Lender unless:
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (Ai) no Unmatured Event of Default or Event of Default shall have occurred and be continuing; provided that, continuing on the Incremental Commitment Effective Date and after giving effect to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing such increase;
(1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (Bii) the representations and warranties contained herein and in the other Loan Documents shall be this Agreement are true and correct in all material respects (except for those representations and warranties that are conditioned by any representation qualified as to “materiality” or “material adverse effect”, which Material Adverse Effect” shall be true and correct in all respectsrespects as so qualified) on and as of the Incremental Commitment Effective Date and after giving effect to such date to the same extent increase, as though made on and as of that such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier specific date);
(iii) each Incremental Lender shall have received an upfront fee in the amount of 0.75% on its Incremental Commitment; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause and
(Biv) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice one or more agreements contemplated above, providing for Incremental Commitments in the amount of Borrowing such increase. As of such Incremental Commitment Effective Date, upon the Administrative Agent’s receipt of the documents required by this Section 2.15(d), the Administrative Agent shall record the information contained in respect the applicable agreement contemplated above in the Register and give prompt notice of any the increase in the Commitments to the Borrower and the Lenders (including each Incremental Term Loans or Lender).
(e) On each Incremental Revolving Loans Commitment Effective Date, if there are Advances then outstanding, the Borrower shall be deemed to prepay such Advances and deemed to reborrow Advances from the Incremental Lenders, as shall be necessary in order that, after giving effect to such deemed prepayments and borrowings, all Advances will be held ratably by the date and time required hereunder Lenders (including the Incremental Lenders) in accordance with respect their respective Pro Rata Share after giving effect to the applicable Type of Loan.
Incremental Commitments and the Lenders shall make such payments or adjustments as are equitable (for purchase participations in the Advances) Each so that the Advances will be held ratably by the Lenders (including the Incremental Lenders) in accordance with their respective Pro Rata Share after giving effect to the applicable Incremental Commitments (or, if the Lenders otherwise agree, the Lenders, including the Incremental Lenders, may assign portions of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary outstanding Advances to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of accomplish the same Classresult).
Appears in 1 contract
Increase in Commitments. (a) The (x) U.S. At any time prior to the Facility Termination Date, Borrower mayshall have the ability, by in consultation with the Agent and through written notice to the Administrative Agent at Agent, substantially in the form of Exhibit D (the “Increase Notice”), to request increases in the Aggregate Commitment (each, a “Requested Commitment Increase”); provided that (i) no Lender shall have any time after obligation to participate in any Requested Commitment Increase, (ii) the Closing Dateaggregate principal amount of all such increases shall not exceed $10,000,000, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (iii) each such Requested Commitment Increase shall be in a minimum principal amount of $10,000,000 or, if less, the maximum remaining amount permitted pursuant to clause (ii) above, and (yiv) no Default or Unmatured Default shall have occurred and be continuing or would result from the EMEA proposed Requested Commitment Increase.
(b) The Agent shall promptly give notice of such Requested Commitment Increase to the Lenders. Each Lender shall notify the Agent within ten (10) Business Days (or such longer period of time which may be agreed upon by the Agent and Borrower may, by written and communicated to the Lenders) from the date of delivery of such notice to the Administrative Agent at any Lenders whether or not it offers to increase its Commitment and, if so, by what amount. Any Lender not responding within such time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender period shall be deemed to have declined to participate therein) and additional banks, offer to increase its Commitment. The Agent shall notify Borrower of the Lenders’ responses to each request made hereunder. Borrower shall have the right in its sole discretion to accept or reject in whole or in part any offered Commitment increase or at its own expense to solicit a Commitment from any third party financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, institution reasonably acceptable to the Agent. Any such financial institution (if not already a Lender hereunder) shall become a party to this Agreement, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit as a Lender pursuant to this Agreement a joinder agreement in form and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and substance reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit CommitmentsBorrower.
(c) All Incremental Term Upon the completion of each Requested Commitment Increase, (i) entries in the accounts maintained pursuant to Section 2.15 will be revised to reflect the revised Commitments and Pro Rata Shares of each of the Lenders (including each new Lender becoming a party to this Agreement pursuant to clause (b) above) and (ii) the outstanding Revolving Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall will be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless reallocated on the effective date of such effectiveness, increase among the Administrative Agent shall have received a certificate certifying that the conditions set forth Lenders in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a accordance with their revised Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower Rata Shares and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties each new Lender becoming a party to be made at the time the transaction is consummated).
(e) Immediately after giving effect this Agreement pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (Bb) above) agree to make all payments and adjustments necessary to effect such reallocation and Borrower shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take pay any and all action costs required in connection with such reallocation as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which if such Incremental Term Loan relate on reallocation were a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Classprepayment.
Appears in 1 contract
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any from time after the Closing Dateto time, request on one or more occasions Incremental Term Loan Commitments and/or and Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) amounts not to exceed the Incremental Facility Maximum Term Loan Amount or the Incremental Revolving Credit Amount, as applicable, from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Agent (i) the Administrative Agent in its reasonable discretion (such consent which approval shall not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in 10,000,000 or equal to the case of remaining Incremental Term Loan Commitments denominated in EuroAmount or Incremental Revolving Credit Amount, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agreeapplicable), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), Agent) and (iii) (x) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Loan Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (ivy) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Credit Commitments and based on or commitments to make revolving loans with terms different from the terms and conditions set forth herein for Revolving Commitments and Loans (“Other Revolving Loans”).
(b) The Applicable Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; providedprovided that, that without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date, Date and the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Credit Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans Loans; and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Dateprovided further that, if the Initial Yield initial yield on such Other Term Loans (as determined by the Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive an upfront fee (other than a customary arrangement or underwriting fee) directly or indirectly from Holdings, the Borrower or any Subsidiary (the amount of such discount or upfront fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (x) the average life to maturity of such Other Term Loans and (y) four) exceeds by more than 50 basis points the Initial Yield sum of (A) the margin then in effect for LIBO Rate Term Loans of any Class (which, with respect to the Term Loans of any such Class, shall be the sum of the Applicable Rate then in effect for such LIBO Rate Term Loans of such Class increased by the amount that any “LIBOR floor” applicable to such LIBO Rate Term Loans of such Class on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) plus (B) one-quarter of the amount of OID initially paid in respect of the Term Loans that are Eurocurrency Loans in the same currency as of such Other Term Loans Class (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin Rate then in effect for each such affected Type Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans and (this clause (iii), b) the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, Applicable Rate with respect to any Other Revolving Loans shall be equal to the sum Applicable Rate for the existing Revolving Loans; provided that the Applicable Rate of (x) the margin above the Adjusted Eurocurrency Rate on such Term existing Revolving Loans (which shall may be increased by to equal the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making Applicable Rate for such Other Term Revolving Loans receive any upfront fee or similar fees to satisfy the requirements of this clause (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) fourb). The other terms of the Incremental Term Loans or the Incremental Revolving Loans, as applicable, and the Additional Incremental Loan Assumption Agreement or the Incremental Revolving Credit Extension Amendment Assumption Agreement, as applicable, to the extent not inconsistent consistent with the terms specified in clauses (i)applicable to the Term Loans and Revolving Loans hereunder, (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative AgentAgent and, to the extent that such Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, as applicable, contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on Holdings, the Borrower or the Restricted Subsidiaries or are more favorable to the Lenders making such Other Term Loans or Other Revolving Loans, as applicable, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term Loans or Other Revolving Loans, as applicable, remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, as applicable. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring thereby as provided for in Section 9.02. Any such deemed amendment may be memorialized in writing by the Agent with the Borrower’s consent of any (not to be unreasonably withheld) and furnished to the other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitmentsparties hereto.
(c) All Incremental Term Loans made to Notwithstanding the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien prioritiesforegoing, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 2.24 unless (i) on the date of such effectiveness, the Administrative conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Agent shall have received a certificate certifying to that effect dated such date and executed by a Financial Officer of the conditions Borrower, (ii) the Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, (iii) the Borrower would be in Pro Forma Compliance with the covenants set forth in Section 4.02(iii6.14 and (iv) shall the Consolidated Secured Debt Ratio would be satisfied immediately no greater than 4.00 to 1.00, in the case of each of clauses (iii) and (iv), after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to and the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment Loans to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations therefrom as if made and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loanapplied on such date.
(fd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 2.15 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are LIBO Rate Term Loans to Base Rate ABR Term Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.percentages under
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Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any from time after the Closing Dateto time, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, and/or Other Revolving Credit Commitments in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Revolving Credit Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided that if any such existing Lender does not respond to such written notice within five (5i) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Agent and each Issuing Bank (i) the Administrative Agent in its reasonable discretion (such consent which approvalapprovals shall not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement ) and (ii) in connection with no event shall any Incremental Revolving Credit Commitments onlyor Other Revolving Credit Commitments become effective if (x) prior to the Restructuring Date, each LC Issuerthe effectiveness of such commitments would cause the aggregate amount of Revolving Credit Commitments and Other Revolving Credit Commitments to exceed the principal amount of the Loans guaranteed by the Parent Guarantor pursuant to the Parent Guaranty and (y) the Agent has not received customary legal opinions, board resolutions and other customary closing certificates and closing documentation as required by the relevant Incremental Revolving Credit Assumption Agreement and, to the extent such consent would have been required for assignments of by the Agent or any Revolving Loans or Revolving Commitments Issuing Bank, consistent with those required to be delivered in connection with a Borrowing pursuant to this AgreementSection 4.01 if prior to the Restructuring Date or Section 4.03 if on or after the Restructuring Date, and such additional customary documents and filings as the Agent or any Issuing Bank may reasonably require. Such notice shall set forth (i) the amount of the Incremental Term Loan Revolving Credit Commitments or the Incremental Other Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable or equal to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agreeremaining Incremental Revolving Credit Amount), (ii) the date on which such Incremental Term Loan Revolving Credit Commitments or Incremental Other Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days ten (10) Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), Agent) and (iii) whether such the Borrower is requesting Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Revolving Credit Commitments or commitments to make term revolving loans with terms different from the Closing Date Term Revolving Loans (“Other Term Revolving Loans”) and (iv) in ). Without limiting the case of Other Term Loansforegoing, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein as a further condition precedent to the contraryeffectiveness of any Incremental Revolving Credit Commitment and/or Other Revolving Credit Commitment, it is acknowledged and agreed that all the Borrower shall deliver to the Agent a certificate of the Borrower dated as of the date on which such Incremental Revolving Credit Commitments or Other Revolving Credit Commitments are requested to be become effective signed by a Financial Officer certifying that, before and after giving effect to such Incremental Revolving Commitments Credit Commitment and/or Other Revolving Credit Commitment, (x) the representations and based on the terms and conditions warranties set forth herein in Article III hereof (other than (1) prior to the Restructuring Date, Section 3.04, Section 3.16 and Section 3.17, and (2) on or after the Restructuring Date, Section 3.04) and in each other Loan Document are true and correct in all material respects on and as of the date thereof with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), and (y) no Event of Default, or event or condition that would constitute an Event of Default but for Revolving Commitments the requirement that notice be given or time elapse or both, has occurred and Revolving Loansis continuing.
(b) The Applicable Borrower may seek Incremental Revolving Credit Commitments and/or Other Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, subject to the approval of the Agent and each Issuing Bank (which approvalapprovals shall not be unreasonably withheld), additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent or any Issuing Bank shall reasonably specify to evidence the Incremental Revolving Credit Commitment or the Other Revolving Credit Commitments, as applicable, of such Incremental Revolving Credit Lender. Each Additional Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Revolving Loans or Incremental Other Revolving Loans, as applicable, Loans to be made thereunder; providedprovided that, that without the prior written consent of all Issuing Banks and all Lenders, (i) the final maturity date of any Other Term Revolving Loans shall be no earlier than the Latest Revolving Credit Maturity Date, Date and (ii) prior to the weighted average life Restructuring Date, the aggregate amount of Revolving Credit Commitments and Other Revolving Credit Commitments shall not at any time exceed the principal amount of the Loans guaranteed by the Parent Guarantor pursuant to maturity of the Parent Guaranty.
(c) The Applicable Rate with respect to any Other Term Incremental Revolving Loans shall be no shorter than the weighted average life to maturity of same as the Closing Date Term Applicable Rate for the existing Revolving Loans and any outstanding Incremental Term Loans and (iii) the Applicable Rate with respect to any Other Term Revolving Loans made within shall not be greater than the first twelve Applicable Rate for the existing Revolving Loans; provided that the Applicable Rate of the existing Revolving Loans may be increased (12but may not be decreased) months after to equal the Closing Date, if the Initial Yield on Applicable Rate for such Incremental Revolving Loans or such Other Term Revolving Loans exceeds by more than 50 basis points to satisfy the Initial Yield requirements of this paragraph (c). The other terms of any Incremental Revolving Loans shall be the same as the terms of the Term other Revolving Loans. The other terms of any Other Revolving Loans that are Eurocurrency Loans and the Incremental Revolving Credit Assumption Agreement in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)respect thereof, then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) extent not consistent with the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, terms applicable to the Revolving Loans hereunder, shall otherwise be reasonably satisfactory to the Agent and, to the extent that such Term Loans Incremental Revolving Credit Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the date such Term Loans Borrower or are made exceeds the Adjusted Eurocurrency Rate) plus (y) if more favorable to the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where Revolving Loans, the amount existing Lenders shall be entitled to the benefit of such discount is equated to interest based rights and provisions so long as such Other Revolving Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on an assumed four (4) year life to maturity, but excluding the part of any arrangement, underwriting, structuring or similar fees) directly or indirectly from Person effective as of the Applicable Borrower or any Subsidiary, the amount date of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) fourIncremental Revolving Credit Assumption Agreement. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Issuing Bank and each Lender as to the effectiveness of each Additional Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Other Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans Commitments evidenced thereby as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause Section 9.02. Any such deemed amendment may be memorialized in writing by the Agent and each Issuing Bank with the Borrower’s consent (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment not to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)unreasonably withheld) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions and furnished to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated)other parties hereto.
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
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Increase in Commitments. (a) The At any time prior to the Revolving Maturity Date, the Borrower may effectuate one increase in the aggregate Revolving Commitments (x) U.S. Borrower maysuch increase being a "Commitment Increase"), by written notice to the Administrative Agent at any time after the Closing Date, request on designating either one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) of the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term existing Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate which, in its sole discretion; provided that if any such existing Lender does not respond , may determine whether and to such written notice within five (5) Business Days, such Lender shall be deemed to have declined what degree to participate thereinin such Commitment Increase) and additional banks, financial institutions and or one or more other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further Eligible Assignees that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to at the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments oftime agree, in the case of Incremental Term Loan Commitments and/or Incremental any such Eligible Assignee that is an existing Lender to increase its Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000Commitment as such Lender shall so select (an "Increasing Lender") and, in the case of Incremental Term Loan Commitments denominated in Euroany other Eligible Assignee that is not an existing Lender (an "Additional Lender"), €1,000,000 and to become a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency party to this Agreement as a Revolving Lender; provided, however, that (which currency i) such Commitment Increase shall be reasonably acceptable equal to the Administrative Agent)$5,000,000, such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving LoansAdvances provided pursuant to a Commitment Increase shall be available on the same terms as those applicable to the existing Revolving Commitments and Revolving Advances. The Borrower shall provide prompt notice of such proposed Commitment Increase pursuant to this Section 2.15 to the Administrative Agent and the Lenders. This Section 2.15 shall not be construed to create any obligation on the Administrative Agent or any of the Lenders to advance or to commit to advance any credit to the Borrower or to arrange for any other Person to advance or to commit to advance any credit to the Borrower.
(b) The Applicable Borrower Commitment Increase shall become effective on the date (the "Increase Date") on or prior to which the following conditions shall have been satisfied: (i) the receipt by the Administrative Agent of (A) an agreement in form and each Incremental Term Lender shall execute and deliver substance reasonably satisfactory to the Administrative Agent an signed by the Borrower, each Increasing Lender and each Additional Credit Extension Amendment Lender, setting forth the Revolving Commitments, if any, of each such Lender and setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Lender, and (B) such other documentation evidence of appropriate authorization on the part of the Borrower with respect to such Commitment Increase as the Administrative Agent shall may reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Daterequest, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity funding by each Increasing Lender and Additional Lender of the Closing Date Term Loans and any outstanding Incremental Term Loans Advances to be made by each such Lender to effect the prepayment requirement set forth in Section 2.5(c)(v), and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined receipt by the Administrative Agent, be equal to the sum Agent of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount a certificate of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms authorized officer of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees Borrower stating that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary both before and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment Increase, no Default has occurred and is being used to consummate a Limited Condition Acquisition) continuing, and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any that all representations and warranties made by the Borrower in this Agreement are true and correct in all material respects, unless such representation or warranty relates to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be an earlier date which remains true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that .
(c) Notwithstanding any provision contained herein to the extent that contrary, from and after the proceeds date of Loans under any Incremental such Commitment Increase, all calculations and payments of interest on the Revolving Advances shall take into account the actual Revolving Commitment of each Lender and the principal amount outstanding of each Revolving Advance made by such Lender during the relevant period of time.
(d) On such Increase Date, each Lender’s share of the Letter of Credit Commitments and/or Incremental Term Loan Commitments are Exposure on such date shall automatically be deemed to equal such Lender’s applicable pro rata share of such Letter of Credit Obligations (such pro rata share for such Lender to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required determined as of the time the definitive agreement Increase Date in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received accordance with its Revolving Commitment on such date as a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each percentage of the parties hereto hereby agrees that the Administrative Agent may take aggregate Revolving Commitment on such date) without further action by any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Classparty.
Appears in 1 contract
Sources: Credit Agreement (Boots & Coots International Well Control Inc)
Increase in Commitments. Borrowers may request an increase in Revolver Commitments or an additional term loan commitment (each an “Incremental Term Loan Commitment” and each term loan provided thereunder in accordance with the terms and conditions of this Section 2.1.7, an “Incremental Term Loan”) from time to time upon notice to Agent, as long as (a) The (x) U.S. Borrower may, by written notice the requested increase to the Administrative Agent at any time after the Closing Date, request on one Revolver Commitments or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit LendersCommitment, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate is in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject minimum amount equal to the approval lesser of (i) $10,000,000, or (ii) the Administrative Agent in its reasonable discretion balance of the amount available under clause (such consent not to be unreasonably withheld, conditioned or delayedc), (b)(i) with respect to an increase in the extent Revolver Commitments, is offered on the Administrative Agent would same terms as existing Revolver Commitments, except for fees which shall be required to consent to determined by the assignment of any Loans or Commitments to such Incremental Term Lender Borrowers and Incremental Revolving Credit Lender pursuant to this Agreement the applicable Lenders, and (ii) in connection with Incremental Revolving Credit Commitments only, respect to each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments ofCommitment, in the case of each Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based offered on the terms and conditions set forth herein for Revolving Commitments in this Section 2.1.7, (c) from and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to after the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity A&R Closing Date, increases under this Section 2.1.7 do not exceed $55,000,000 in the aggregate, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iiid) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans an increase in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)Revolver Commitments, then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used no reduction in the Revolver Commitments pursuant to Section 2.1.4 has occurred prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”requested increase, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Default or Event of Default shall have occurred and be continuing; provided that, . Agent shall promptly notify Lenders of the requested increase to the Revolver Commitments or Incremental Term Loan Commitments, as applicable and, within 10 Business Days thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase its Revolver Commitment or Incremental Term Loan Commitment, as applicable. Any Lender not responding within such period shall be deemed to have declined an increase. If Lenders fail to commit to the full requested increase, Eligible Assignees may issue additional Revolver Commitments or Incremental Term Loan Commitments, as applicable, and become Lenders hereunder. Agent may allocate, in its reasonable discretion, the increased Revolver Commitments or Incremental Term Loan Commitments, as applicable, among committing Lenders and, if necessary, Eligible Assignees. Provided that conditions in this Section 2.1.7 and in Section 6.2 are satisfied, total Revolver Commitments or Incremental Term Loan Commitments, as applicable, shall be increased by the requested amount (or such lesser amount committed by Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, but no later than 90 days following Borrowers’ increase request. Agent, Borrowers, and new and existing Lenders shall execute and deliver such documents and agreements as Agent deems appropriate to evidence the increase in and allocations of Revolver Commitments or Incremental Term Loans, as applicable. On the effective date of an increase, all outstanding Revolver Loans, LC Obligations and other exposures under the Revolver Commitments and Incremental Term Loan Commitments, as applicable, shall be reallocated among Lenders, and settled by Agent if necessary, in accordance with Lenders’ adjusted shares of such Commitments. The terms and provisions of the incremental Revolver Loans will be identical to the terms and conditions applicable to the existing Revolver Loans. The terms and provisions of any Incremental Term Loans shall be applied to consummate as set forth in a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier datejoinder agreement; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (Ba) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by not participate on a greater (but may participate on a lesser) than pro rata basis with the aggregate principal amount of such existing Loans in any optional or mandatory prepayment hereunder, (b) the Incremental Term Loans may be unsecured or secured by the Collateral on a pari passu or junior basis, but shall not be secured by any of the same ClassExclusive Revolver Loan/Letter of Credit Collateral, the Exclusive Term Loan/Capital Expenditure Loan Collateral or the Exclusive DDTL Collateral, (c) any mandatory or optional prepayments with respect any Incremental Term Loan shall be mutually agreed to by Borrowers and Lenders, (d) any Incremental Term Loan shall be secured pursuant to a Mortgage on a Borrower’s Real Estate not already included in the Exclusive Term Loan/Capital Expenditure Loan Collateral or the Exclusive DDTL Collateral, or not already securing another Incremental Term Loan (if any), (e) Borrowers shall deliver Related Real Estate Documents in connection with each such Mortgage, and (f) all other terms of the Incremental Term Loans must be reasonably acceptable to the Agent and the Lenders holding any portion of the Incremental Term Loans.
Appears in 1 contract
Sources: Loan and Security Agreement (Bespoke Capital Acquisition Corp)
Increase in Commitments. Borrowers may request an increase in Commitments from time to time upon not less than 10 Business Days’ notice to Agent, as long as (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after requested increase is in a minimum amount of $5,000,000 and is offered on the Closing Date, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan same terms as existing Commitments, in an aggregate principal amount except for a closing fee specified by Borrowers, (together with all Incremental Equivalent Debt outstanding at such timeb) total increases under this Section do not to exceed the Incremental Facility Maximum Amount from one or $75,000,000 and no more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretionthan five increases are made; provided that if any such existing Lender the Commitment Increase (as defined in the First Amendment) shall be disregarded for purposes of the limits set forth in this clause (b), and (c) the requested increase does not respond cause the Commitments to such written notice exceed 90% of any applicable cap under any intercreditor or subordination agreement (including the Intercreditor Agreement). Agent shall promptly notify Lenders of the requested increase and, within five (5) Business DaysDays thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase its Commitment. No Lender is obligated to provide any increase, and any Lender not responding within such period shall be deemed to have declined an increase. If ▇▇▇▇▇▇▇ fail to participate therein) commit to the full requested increase, Eligible Assignees may issue additional Commitments and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicablehereunder. Agent may allocate, in connection therewith; providedconsultation with Borrowers, further that each Incremental Term Lender and Incremental Revolving Credit Lenderthe increased Commitments among committing Lenders and, if not already a Lender hereundernecessary, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Eligible Assignees. Total Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the requested amount any “LIBOR floor” (or “EURIBOR floor”such lesser amount committed by ▇▇▇▇▇▇▇ and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses provided (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be 6.2 are satisfied immediately after giving effect to at such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2ii) at the time such Limited Condition Acquisition is consummated flood insurance diligence and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall documentation have been true and correct completed as required by all Flood Laws or otherwise in a manner satisfactory to all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”Lenders. Agent, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basisObligors, and the U.S. Borrower agrees that Section 3.02 new and existing Lenders shall apply execute and deliver such documents and agreements as Agent reasonably deems appropriate to evidence the increase in and allocations of Commitments and Obligors shall pay any conversion reasonable and documented out-of-pocket fees and expenses incurred in connection therewith. On the effective date of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loansan increase, the scheduled amortization payments set forth in Section 2.13(b) required to be made after Revolver Usage and other exposures under the making of such Incremental Term Loans Commitments shall be ratably increased reallocated among Lenders, and settled by the aggregate principal amount Agent as necessary, in accordance with Lenders’ adjusted shares of such Incremental Term Loans of the same ClassCommitments.
Appears in 1 contract
Sources: Loan, Security and Guaranty Agreement (Atlas Energy Solutions Inc.)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any from time after the Closing Dateto time, request on one or more occasions Incremental Term Loan Commitments and/or and Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) amounts not to exceed the Incremental Facility Maximum Term Loan Amount or the Incremental Revolving Credit Amount, as applicable, from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Agent (i) the Administrative Agent in its reasonable discretion (such consent which approval shall not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in 10,000,000 or equal to the case of remaining Incremental Term Loan Commitments denominated in EuroAmount or Incremental Revolving Credit Amount, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agreeapplicable), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), Agent) and (iii) (x) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Commitments to make Term Commitments, Closing Date U.S. Term Commitments Loans or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (ivy) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Commitments to make Revolving Commitments and based on B Loans or commitments to make revolving loans with terms different from the terms and conditions set forth herein for Revolving Commitments and B Loans (“Other Revolving Loans”).
(b) The Applicable Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; providedprovided that, that without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Tranche C Maturity Date, Date and the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving B Credit Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Tranche C Term Loans Loans; and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Dateprovided further that, if the Initial Yield initial yield on such Other Term Loans (as determined by the Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive an upfront fee (other than a customary arrangement or underwriting fee) directly or indirectly from Holdings, the Borrower or any Subsidiary (the amount of such discount or upfront fee, expressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (x) the average life to maturity of such Other Term Loans and (y) four) exceeds by more than 50 basis points the Initial Yield sum of (A) the margin then in effect for LIBO Rate Term Loans of any Class (other than the Tranche B Term Loans) (which, with respect to the Term Loans of any such Class, shall be the sum of the Applicable Rate then in effect for such LIBO Rate Term Loans of such Class increased by the amount that any “LIBOR floor” applicable to such LIBO Rate Term Loans of such Class on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) plus (B) one-quarter of the amount of OID initially paid in respect of the Term Loans that are Eurocurrency Loans in the same currency as of such Other Term Loans Class (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin Rate then in effect for each such affected Type Class of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans and (this clause (iii), b) the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, Applicable Rate with respect to any Other Revolving Loans shall be equal to the sum Applicable Rate for the Revolving B Loans; provided that the Applicable Rate of the Revolving B Loans may be increased to equal the Applicable Rate for such Other Revolving Loans to satisfy the requirements of this clause (x) b). If the margin above Applicable Rate for the Adjusted Eurocurrency Rate on such Tranche C Term Loans (which is increased pursuant to the preceding sentence as a result of the incurrence of Other Term Loans, then the Applicable Rate for the Tranche B Term Loans shall be increased at the same time and by the amount any “LIBOR floor” or “EURIBOR floor”, same number of basis points as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from increase in the Applicable Borrower or any Subsidiary, Rate for the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Tranche C Term Loans and (B) fourLoans. The other terms of the Incremental Term Loans or the Incremental Revolving Loans, as applicable, and the Additional Incremental Loan Assumption Agreement or the Incremental Revolving Credit Extension Amendment Assumption Agreement, as applicable, to the extent not inconsistent consistent with the terms specified in clauses (i)applicable to the Term Loans and Revolving Loans hereunder, (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative AgentAgent and, to the extent that such Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, as applicable, contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on Holdings, the Borrower or the Restricted Subsidiaries or are more favorable to the Lenders making such Other Term Loans or Other Revolving Loans, as applicable, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term Loans or Other Revolving Loans, as applicable, remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Assumption Agreement, as applicable. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring thereby as provided for in Section 9.02. Any such deemed amendment may be memorialized in writing by the Agent with the Borrower’s consent of any (not to be unreasonably withheld) and furnished to the other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitmentsparties hereto.
(c) All Incremental Term Loans made to Notwithstanding the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien prioritiesforegoing, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 2.24 unless (i) on the date of such effectiveness, the Administrative conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Agent shall have received a certificate certifying to that effect dated such date and executed by a Financial Officer of the conditions set forth Borrower, (ii) the Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Restatement Date, (iii) the Consolidated Net Leverage Ratio would be no greater than 6.00 to 1.00 and (iv) the Consolidated Secured Debt Ratio would be no greater than 4.00 to 1.00, in Section 4.02(iiithe case of each of clauses (iii) shall be satisfied immediately and (iv), after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to and the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment Loans to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations therefrom as if made and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loanapplied on such date.
(fd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Tranche B Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 2.15 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are LIBO Rate Term Loans to Base Rate ABR Term Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in percentages under Section 2.13(b2.08(a) required to be made after the making of such Incremental Term Loans shall be ratably increased by deemed to apply to the aggregate principal amount of such Incremental Term Loans of on the same Classdate such Loans are made.
Appears in 1 contract
Increase in Commitments. (a) The (x) U.S. Borrower at its option may, from time to time, seek to (i) request one or more term loans (each an “Incremental Term Loan” and, collectively, the “Incremental Term Loans”) and/or (ii) increase the aggregate Revolving Loan Commitments (each such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loans, the “Incremental Facilities”) by up to an aggregate amount of $1,000,000,000800,000,000 upon at least three (3) Business Days’ prior written notice to the Administrative Agent at Agent, which notice shall specify the amount of any time after the Closing Date, request on one such Incremental Facility (which shall be in a minimum amount of $25,000,000 and in multiples of $5,000,000 in excess thereof (or more occasions Incremental Term Loan Commitments such lesser amount and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice increments to which the Administrative Agent at any time after may agree)) and shall certify that no Potential Event of Default or Event of Default has occurred and is continuing. After delivery of such notice, the Closing Date, request on one or more occasions Incremental Term Loan CommitmentsBorrower, in an aggregate principal amount (together consultation with all Incremental Equivalent Debt outstanding at such time) not to exceed the Administrative Agent, may offer the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, (which may include be declined by any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if discretion and any such existing Lender which does not respond to such written notice within five (5) Business Days, such Lender a request to extend an Incremental Facility shall be deemed to have declined to participate thereindo so) and additional banks, financial institutions and other institutional lenders who will become Incremental Term on either a ratable basis to the Lenders or on a non pro-rata basis to one or more Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned other lenders or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be entities reasonably acceptable to the Administrative Agent), the Issuing BanksLenders (in the case of an Incremental Revolving Commitment) and the Borrower. No Incremental Facility shall become effective until the existing or new Lenders extending such minimum increments Incremental Facility and the Borrower shall have delivered to the Administrative Agent a document in form and substance reasonably satisfactory to the Administrative Agent and the Borrower pursuant to which (i) any such existing Lender providing or increasing a commitment in respect of such Incremental Facility agrees to the amount of its portion of the Incremental Facility, (ii) any such new lender providing a commitment in respect of such Incremental Facility agrees to its portion of the Incremental Facility and agrees to assume and accept the obligations and rights of a Revolving Lender and/or Term Loan Lender hereunder, as applicable, (iii) the Applicable Borrower accepts such Incremental Facility, (iv) the effective date of any Incremental Facility is specified by the Borrower and the lenders providing or increasing their respective commitments in respect of such Incremental Facility and (v) the Borrower certifies that on such date the conditions for a new Loan set forth in subsection 4.024.2 are satisfied. The terms of any Incremental Term Loan shall, taken as a whole, be substantially identical to, or less favorable to the lenders making such Incremental Term Loan than, the terms applicable to Term Loans hereunder, except that (A) the Borrower and the Administrative Agent shall reasonably agree)may amend this Agreement and the other Loan Documents to implement such mechanical and conforming changes as the Borrower and the Administrative Agent deem appropriate, (iiB) the maturity date on which of any Incremental Term Loan shall be no earlier than the Term Loan Maturity Date, (C) the interest rate margins and other economic terms, amortization schedule, prepayment terms, and currency applicable to any Incremental Term Loan shall be determined by the Borrower and the lenders thereunder and (D) the foregoing limitation upon the terms of any Incremental Term Loan shall not apply to covenants or other provisions applicable only to periods after the latest Term Loan Maturity Date. Each Incremental Term Loan shall be made pursuant to an amendment, restatement or amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each lender under such Incremental Term Loan Commitments and the Administrative Agent, in each case without the need to obtain the consent of any other Person. Each Incremental Term Loan Amendment may effect such amendments to this Agreement and the other Loan CHAR1\1732468v1CHAR1\1735441v5 Documents as may be necessary or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after appropriate, in the date reasonable opinion of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion)and the Borrower, (iii) whether to give effect to the provisions of this subsection 2.10. The Lenders hereby irrevocably authorize the Administrative Agent to enter into such Incremental Term Loan Commitments are Amendments. Upon the effectiveness of any Incremental Revolving Commitment pursuant hereto, (i) each Revolving Lender (new or existing) shall be deemed to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different have accepted an assignment at par from the Closing Date Term Loans existing Revolving Lenders, and the existing Revolving Lenders shall be deemed to have made an assignment at par to each new or existing Revolving Lender accepting a new or increased Revolving Loan Commitment, of an interest in each then outstanding Revolving Loan (“Other Term Loans”) and (iv) in the case of Other Term Loanseach case, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments in the Assignment and Revolving Loans.
(bAssumptionAgreement) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life credit exposure to maturity the Borrower hereunder in respect of any Other Term Swing Line Loans and Letters of Credit of the existing and new Revolving Lenders shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on automatically adjusted such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required assignments and adjustments, all credit exposure to the extent such Incremental Term Borrower hereunder is held ratably by the Revolving Lenders in proportion to their respective Revolving Loan Commitment or Incremental Revolving Credit Commitment is being used Commitments. Assignments pursuant to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to preceding sentence shall be made in whole or in partexchange for, and substantially contemporaneously with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions payment to the entry into or assigning Revolving Lenders of, the making principal amount assigned plus accrued and unpaid interest and commitment and Letter of any Loans Credit fees relating to such principal amount. Payments received by assigning Revolving Lenders pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement this subsection 2.10 in respect of the principal amount of any Eurodollar Rate Loan shall, for purposes of subsection 2.6D, be deemed prepayments of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents Loan. Any Incremental Facility pursuant to this subsection 2.10 shall be true and correct in all material respects (except for those representations and warranties that are conditioned subject to receipt by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as the Administrative Agent from the Borrower of such date supplemental opinions, resolutions, certificates and other documents as the Administrative Agent may reasonably request. Notwithstanding anything in subsection 10.6 or elsewhere herein to the same extent as though made on and as contrary, no consent of that date, except any Lender (other than the Lenders agreeing to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” new or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (Bincreased commitments) shall be required as for any Incremental Facility provided or Loan made pursuant to this subsection 2.10. This subsection 2.10 shall supersede any provisions in subsections 10.1B, 10.5 or 10.6 to the contrary. In no event shall any Incremental Facility established pursuant to this subsection 2.10 result in the sum of the time Total Utilization of Revolving Loan Commitments plus the definitive agreement in respect aggregate amount of Limited Condition Acquisition is entered into. If applicable, undrawn Revolving Loan Commitments plus the Administrative Agent shall have received a Notice aggregate amount of Borrowing in respect of any all Term Loans and Incremental Term Loans or Incremental Revolving Loans by the date and time required made hereunder with respect to the applicable Type of Loanexceed $3,720,000,000.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 1 contract
Sources: Credit Agreement (Mosaic Co)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written Upon notice to the Administrative Agent Agent, at any time after the Closing Effective Date, the Borrower may request on that Additional Revolving Credit Commitments be provided by the existing Lenders (in accordance with their Pro Rata Share), and if such Lenders are unwilling to provide such Additional Revolving Credit Commitments (it being understood that a Lender shall be deemed to be unwilling to provide such Additional Revolving Credit Commitments if it has not affirmatively responded to the Administrative Agent within 10 Business Days after ▇▇▇▇▇▇▇▇’s request), (x) the Lead Arranger will use its reasonable efforts, subject to compensation to be agreed, to obtain one or more occasions Incremental Term Loan Persons that are Eligible Assignees to provide such Additional Revolving Credit Commitments and/or Incremental (y) the Borrower may identify one or more Persons that are Eligible Assignees to provide such Additional Revolving Credit Commitments; provided that (i) after giving effect to any such Additional Revolving Credit Commitments, the aggregate amount of Additional Revolving Credit Commitments that have been added pursuant to this Section 2.18 shall not exceed $160,000,000, (ii) each request for Additional Revolving Credit Commitments shall be in minimum increments of $20,000,000, (iii) the Borrower shall not make more than five such requests for Additional Revolving Credit Commitments and (yiv) the EMEA terms of any Additional Revolving Credit Advances shall be the same as those for the existing Revolving Credit Advances, except that the Borrower may, by written notice shall be permitted to pay upfront fees to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Additional Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate Lenders in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not amounts to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligationsagreed. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental the Lender Parties shall not be obligated to commit to the Additional Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving LoansCommitments.
(b) The Applicable Any Additional Revolving Credit Commitments to provide Additional Revolving Credit Advances under this Section 2.18 shall be added to this Agreement pursuant to an amendment (the “Additional Revolving Credit Commitment Amendment”) among the Parent, the Borrower, the Administrative Agent and the Additional Revolving Credit Lenders. As conditions precedent to the effectiveness of the Additional Revolving Credit Commitment Amendment, the Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent (x) a certificate on behalf of the Borrower dated as of the effective date (the “Additional Revolving Credit Commitments Effective Date”) signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties of the Loan Parties contained in Article IV and the other Loan Documents are true and correct in all material respects on and as of the Additional Revolving Credit Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date (in which case such representations and warranties are true on and of such earlier date) and without duplication of any materiality qualifiers applicable thereto, and (ii) no Event of Default exists immediately before or immediately after giving effect to such Additional Revolving Credit Extension Amendment Commitment, the making of Additional Revolving Credit Advances in respect thereof and any Investment to be consummated in connection therewith, and (y) if any Loan Party or any of its Subsidiaries owns any Margin Stock, an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrower, together with such other documentation as the Administrative Agent shall reasonably specify request, in order to evidence enable the Incremental Term Loan Commitment Agents and the Lenders to comply with any of such Incremental Term Lenderthe requirements under Regulations T, U or X of the Board. The U.S. Borrower and On each Incremental Additional Revolving Credit Lender Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Revolving Credit Commitment (i) shall execute become a “Revolving Credit Lender” for all purposes of this Agreement and deliver the other Loan Documents and (ii) in the case of any Additional Revolving Credit Commitment, shall make an Additional Revolving Credit Advance to the Company in a principal amount equal to such Additional Revolving Credit Commitment, and such Additional Revolving Credit Advance shall be a “Revolving Credit Advance” for all purposes of this Agreement and the other Loan Documents.
(c) Any Additional Revolving Credit Commitment Amendment and any related documentation may, without the consent of any Lenders (other than Additional Revolving Credit Lenders that are party to such Additional Revolving Credit Commitment Amendment), effect such amendments to this Agreement and the other Loan Documents as may be reasonably necessary, in the reasonable opinion of the Administrative Agent an (in consultation with the Borrower), to effect the provisions of this Section 2.18. Any Additional Revolving Credit Extension Amendment and such other documentation as Advances made pursuant to this Section 2.18 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 9.07(d).
(d) This Section 2.18 shall reasonably specify supersede any provisions in Section 9.01 to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lendercontrary. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date Notwithstanding any other provision of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii)Loan Document, the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined Loan Documents may be amended by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory Loan Parties, if necessary, to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as provide for terms applicable to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 1 contract
Increase in Commitments. (a) The (x) U.S. Subject to the terms and conditions set forth herein, after the Amendment No. 4 Effective Date, the Administrative Borrower mayshall have the right to request, by written notice to the Administrative Agent at any time after Agent, increases in the Closing Date, request on one or more occasions Incremental Term Loan Legacy Commitments and/or Incremental the ETMC Commitments (a “Revolving Commitment Increase”) in an aggregate amount not to exceed $100,000,000; provided that (i) any Revolving Commitment Increase shall be on the terms (including the Maturity Date) and pursuant to the documentation applicable to the Revolving Credit Facilities, (ii) the Administrative Borrower shall only be permitted to request three Revolving Commitment Increases during the term of this Agreement, (iii) each Revolving Commitment Increase with respect to the Legacy Commitments shall be conditioned on receipt by the Administrative Agent of an amendment to the Relative Rights Agreement, duly executed by each of the applicable parties as required by the terms of the Relative Rights Agreement, to increase both the Cap Amount Floor and the Cap Amount (each as defined in the Relative Rights Agreement) by an amount not less than the amount of such Revolving Commitment Increase and (viv ) any Revolving Commitment Increase shall be in a minimum amount of $5,000,000.
(b) Each notice submitted pursuant to this Section 2.14 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify (x) the amount of the increase in the Commitments being requested and (y) whether such increase is requested for the EMEA Borrower mayETMC Commitments or the Legacy Commitments. Upon receipt of a Revolving Commitment Increase Notice, by written notice the Administrative Agent may (at the direction of the Administrative Borrower) promptly notify the Lenders under the applicable Revolving Credit Facility and each such Lender may (subject to the Administrative Agent at Borrower’s consent) have the right to elect to have its Commitment increased by its Applicable Pro Rata Share (it being understood and agreed that a Lender may elect to have its Commitment increased in excess of its Applicable Pro Rata Share in its discretion if any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing other Lender (each of which shall be entitled to agree or decline declines to participate in the Revolving Commitment Increase) of the requested increase in Commitments; provided that (i) each applicable Lender may elect or decline, in its sole discretion; provided , to have its Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Commitment unless it, in its sole discretion, so agrees and, if any such existing a Lender does not fails to respond to such written notice any Revolving Commitment Increase Notice within five ten (510) Business DaysDays after such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate thereinin such Revolving Commitment Increase; (ii) and if any Lender declines to participate in any Revolving Commitment Increase and, as a result, commitments from additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, are required in connection therewith; providedwith the Revolving Commitment Increase, further that each Incremental Term Lender or if the Administrative Borrower does not instruct the Administrative Agent to initially request increases of the existing Lenders and Incremental commitments of additional lenders are sought in connection with the Revolving Credit LenderCommitment Increase, if not already a Lender hereunder, any Person or Persons providing such commitment shall be subject to the approval written consent of (i) the Administrative Agent in its reasonable discretion and the Swing Line Lenders and with respect to Revolving Commitment Increases for the Legacy Commitments, the L/C Issuers (each such consent not to be unreasonably withheld, conditioned withheld or delayed), to the extent the Administrative Agent in each case, if such consent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement Section 11.07; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase and (iiiv) no L/C Issuer or Swing Line Lender shall be required to act in connection with Incremental such capacity under the Revolving Credit Commitments only, each LC Issuer, Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to the extent such consent would have been required for assignments of participate in any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth Commitment Increase (i) the amount of the Incremental Term each an “Increase Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative AgentLender”), such minimum increments Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Applicable Borrower Increase Loan Lenders and the Administrative Agent Borrower, which date shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days as soon as practicable after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms receipt of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that Commitment Increase Notice (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii)date, the “MFN ProtectionIncrease Date”). As used in ; provided that the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, establishment of such Revolving Commitment Increase shall be equal subject to the sum satisfaction of each of the following conditions: (1) (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” no Default or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus Event of Default would exist after giving effect thereto or (y) if the Lenders making such Other Term Loans receive any upfront fee Revolving Commitment Increase is used to finance a Permitted Acquisition or similar fees Permitted Investment, no Event of Default pursuant to Section 9.01(a) or 9.01(f) exists; (including original issue discount where 2) the amount of such discount is equated Revolving Commitment Increase shall be effected pursuant to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring one or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided more joinder agreements executed and delivered by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Administrative Borrower, the Administrative Agent Agent, and the Incremental Term Lenders Increase Loan Lenders, each of which shall be reasonably satisfactory to the Administrative Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Loan Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Loan Documents, legal opinions and other documents as the Administrative Agent may reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
; (c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B4) the representations and warranties contained herein and in the other Loan Documents Article VI shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except respects to the extent such representations and warranties specifically relate that any representation or warranty is qualified by materiality) as of the Increase Date; provided that, if the Revolving Commitment Increase is used to an earlier datefinance a Permitted Acquisition or a Permitted Investment, in which case such the representations and warranties shall have been true be subject to customary “Sungard” limitations; and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which 5) the Borrowers shall have been true and correct in all respects) on and as of such earlier date; provided that paid to the extent that Administrative Agent and the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are Lenders such additional fees as may be agreed to be used to finance a Limited Condition Acquisitionpaid by the Borrowers in connection therewith.
(c) On the Increase Date, then upon fulfillment of the accuracy of representations and warranties as described conditions set forth in this clause Section 2.14, (Bi) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received effect a Notice settlement of Borrowing in respect of any Incremental Term all outstanding Loans or Incremental under the applicable Revolving Loans by Credit Facility among the date and time required hereunder with respect applicable Lenders that will reflect the adjustments to the Commitments under the applicable Type Revolving Credit Facility of Loanthe applicable Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Loan Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Commitments of the affected Lenders and (iv) Revolving Credit Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Revolving Credit Note.
(fd) Each The terms and provisions of the parties hereto hereby agrees that Revolving Commitment Increase shall be identical to the Loans and the Commitments under the applicable Revolving Credit Facility. Without limiting the generality of the foregoing, (i) Commitment Fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rates applicable to the existing Loans under the applicable Revolving Credit Facility, (ii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Loans under the applicable Revolving Credit Facility, (iii) after giving effect to such Revolving Commitment Increases, Commitments under the applicable Revolving Credit Facility shall be reduced based on each such Lender’s Applicable Pro Rata Share, and (iv) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the existing Loans under the applicable Revolving Credit Facility. Each joinder agreement and any amendment to any Loan Document requested by the Administrative Agent may take in connection with the establishment of the Revolving Commitment Increase may, without the consent of any of the Lenders, effect such amendments to this Agreement and all action the other Loan Documents as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans)or appropriate, when originally made, are included in each Borrowing the opinion of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent and the Administrative Borrower, to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in provisions of this Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class2.14.
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Increase in Commitments. (a) After the Effective Date, the Borrowers shall have the right to increase the aggregate Revolving Commitments by obtaining additional Revolving Commitments (“Incremental Revolving Commitments”) and the right to increase the aggregate Term Loan Commitments by obtaining additional Term Loan Commitments (“Incremental Term Commitments”), in each case from either one or more of the Lenders or an additional Eligible Incremental Lender; provided that (A) any such Incremental Commitment shall be in a minimum amount of $25,000,000, (B) the aggregate amount of all Incremental Commitments effected pursuant hereto shall not exceed $1,250,000,000; (C) any such new Term Lender shall have assumed all of the rights and obligations of a “Term Lender” hereunder; (D) any such new Revolving Lender shall have assumed all of the rights and obligations of a “Revolving Lender” hereunder; (E) any such Incremental Revolving Commitments shall, subject to Section 2.10(e), be on the same terms as the other Revolving Commitments and any such Incremental Term Commitments shall, subject to Section 2.10(e), be on the same terms as the other Term Loans; and (F) all of the procedures and other conditions described in this Section 2.10 shall have been satisfied.
(b) The Borrower Representative shall request an Incremental Commitment by delivering a notice (xan “Incremental Commitment Request”) U.S. Borrower may, by written notice to the Administrative Agent, who shall promptly notify the Lenders of the substance thereof. The notice by the Administrative Agent at any to the Lenders describing each Incremental Commitment Request shall specify the time after period (to be determined by the Closing DateBorrower Representative in consultation with the Administrative Agent, request on one or more occasions but in no event be less than 15 Business Days from the date of delivery by the Borrower Representative of the applicable Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice Commitment Request to the Administrative Agent) within which each Lender is required to inform the Borrower Representative and the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at whether such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline intends to participate in its sole discretion; provided that the applicable Incremental Commitment. Each Lender shall notify the Administrative Agent within the required time period whether or not it agrees to participate in the applicable Incremental Commitment and, if any so, shall specify the amount of such existing Incremental Commitment it desires to be allocated to it. Any Lender does not respond to responding within such written notice within five (5) Business Days, such Lender time period shall be deemed to have declined to increase its Commitment. Each determination by a Lender to participate thereinin an Incremental Commitment shall be made by it in its sole and absolute discretion.
(c) The Administrative Agent shall notify the Borrower Representative and each Lender of the Lenders’ responses to each Incremental Commitment Request. The 68
(d) Any amendment hereto solely for Incremental Commitments shall be in form and substance satisfactory to the Administrative Agent and shall only require the written signatures of the Administrative Agent, the Borrower Representative (on behalf of the Borrowers) and additional banksthe Lender(s) providing an Incremental Commitment. As a condition precedent to any such Incremental Commitment, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, the Borrowers shall be subject deliver to the approval of Administrative Agent (i) a certificate of each Loan Party signed by an authorized officer of such Loan Party (x) certifying and attaching the Administrative Agent in its reasonable discretion (resolutions adopted by such consent not to be unreasonably withheld, conditioned Loan Party approving or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments consenting to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement Commitment; and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (ivy) in the case of Other Term Loansthe Borrowers, whether certifying that, before and immediately after giving effect to such Other Term Loans are increase, (A) the representations and warranties contained in Article III and the other Loan Documents shall be true and correct, except that such representations and warranties that relate solely to an earlier date shall be EMEA Facility Obligations true and correct in all material respects as of such earlier date; (B) no Default or U.S. Obligations. Notwithstanding anything contained herein Event of Default shall have occurred and be continuing or would result from any such Incremental Commitment; and (C) at the time of and immediately after giving effect to each such Incremental Commitment, the contraryBorrowers shall be in compliance with the covenant set forth in Section 6.13 (on a Pro Forma Basis for the Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b) ending immediately preceding such Incremental Commitment), it is acknowledged which compliance shall be evidenced by the due completion, execution and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments delivery of a Compliance Certificate and based on the terms assumption that such Incremental Commitment was fully drawn on the first day of such Test Period, and conditions set forth herein for Revolving Commitments (ii) such opinions of counsel, evidence of flood insurance, ratification agreements, amendments to the other Loan Documents (which amendments the Administrative Agent is authorized to execute on behalf of all Lenders), and Revolving Loans.
(b) The Applicable Borrower other documents, certificates and each Incremental Term Lender information as the Administrative Agent may reasonably request; provided that flood insurance due diligence and flood insurance compliance shall execute and deliver be reasonably satisfactory to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence Lenders whose compliance is impacted by the Incremental Term Loan Commitment of such Incremental Term Lender. relevant incremental facility.
(e) The U.S. Borrower terms and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms provisions of the Loans made with respect to any Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that Commitments shall (i) rank pari passu in right of payment and of security with, and shall have the final same guarantees as the existing Loans; (ii) have a maturity date of any Other Term Loans shall be no that is not earlier than the Latest Maturity DateDate of the Term Loans (or if Incremental Revolving Commitments, the Revolving Loans); (iiiii) the have a weighted average life to maturity of any Other Term Loans shall be that is no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.69
(f) Each Any existing Lender that has a Note and participates in any Incremental Commitment shall, substantially contemporaneously with the delivery of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may its Note to be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, replaced to the extent any Incremental Term Loans are not Other Term LoansBorrowers, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by receive a replacement Note that evidences the aggregate principal amount of its Loans outstanding hereunder. Any new Lender requesting a Note shall receive such a Note in an amount equal to the aggregate principal amount of the Incremental Commitments for which its funds pursuant to the terms of this Section.
(g) Within a reasonable time after the effective date of any Incremental Commitment, the Administrative Agent shall, and is hereby authorized and directed to, revise the Commitment Schedule to reflect any Incremental Commitment and shall distribute such revised Commitment Schedule to each of the Lenders and the Borrowers, whereupon such revised Commitment Schedule shall replace the prior Commitment Schedule and become part of this Agreement. On the Business Day following the effectiveness of any such Incremental Term Revolving Commitment, all outstanding Revolving Loans shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Applicable Percentages of the same ClassRevolving Commitments.
Appears in 1 contract
Increase in Commitments. Subject to the terms and conditions set forth herein, the Company shall have the right, from time to time and upon at least ten (a10) The Business Days’ (xor such shorter period as may be agreed by the Administrative Agent) U.S. Borrower may, by prior written notice to the Administrative Agent (an “Incremental Request”), to request to add one or more tranches of term loans (the “Incremental Term Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) and/or increase the Aggregate Revolving Commitments (the “Incremental Revolving Commitments”; and revolving loans made thereunder the “Incremental Revolving Loans”; the Incremental Revolving Loans, together with the Incremental Term Loans are referred to herein as the “Incremental Facility Loans”) subject, however, in any such case, to satisfaction of the following conditions precedent:
(a) the aggregate amount of all Incremental Facility Loans effected pursuant to this Section 2.14 shall not exceed the sum of (x) $250,000,000 (the “Fixed Incremental Amount”) plus the maximum principal amount of Indebtedness that may be incurred at such time that would not cause the Consolidated Debt to EBITDA Ratio to exceed 3.00:1.00 on a Pro Forma Basis (the “Ratio Incremental Amount”); provided, that, each Incremental Facility Loan shall be deemed to be incurred first under the Ratio Incremental Amount with the balance incurred under the remaining Fixed Incremental Amount, unless the Company otherwise elects pursuant to a written notice to make such incurrence or increase in a different order; provided, further, any Incremental Facility Loan incurred under the Fixed Incremental Amount may be reclassified at any time, as the Company may elect from time to time, as incurred under the Ratio Incremental Amount if the Company meets the applicable ratio under the Ratio Incremental Amount at such time on a Pro Forma Basis at any time after subsequent to the Closing Date, request on one or more occasions incurrence of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitmentswould have met such ratio, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Dayscase, such Lender reclassification shall be deemed to have declined automatically occurred if not elected by the Company);0;
(b) on the date on which any Incremental Facility Amendment is to participate thereinbecome effective, both immediately prior to and immediately after giving effect to the incurrence of such Incremental Facility Loans (assuming that the full amount of the Incremental Facility Loans shall have been funded on such date) and additional banksany related transactions, financial institutions no Default shall have occurred and other institutional lenders who will become be continuing (but subject to Section 1.10 with respect to any Incremental Term Lenders and/or Facility the proceeds of which will be used to finance any Limited Condition Transaction);
(c) after giving effect to the incurrence of such Incremental Revolving Credit LendersFacility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Loan Parties shall be in compliance with the financial covenants set forth in Section 7.13 (but subject to Section 1.10 with respect to any Incremental Term Facility the proceeds of which will be used to finance any Limited Condition Transaction);
(d) the representations and warranties set forth in Article V shall be true and correct in all material respects on and as applicableof the date on which such Incremental Facility Amendment is to become effective, except to the extent that such representations and warranties specifically refer to an earlier date, in connection therewithwhich case they shall be true and correct in all material respects as of such earlier date, and except that for purposes of this clause (d), the representations and warranties contained in clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01 (but subject to Section 1.10 with respect to any Incremental Term Facility the proceeds of which will be used to finance any Limited Condition Transaction);
(e) unless otherwise agreed by the Administrative Agent, such Incremental Facility Loans shall be in a minimum amount of $25,000,0000 and in integral multiples of $5,000,0000 in excess thereof; provided, further that each such Incremental Facility Loans may be in an amount equal to the remaining aggregate amount of Incremental Revolving Commitments and Incremental Term Lender and Loans permitted to be obtained pursuant to clause (a) above;
(f) any Incremental Revolving Credit Lender, if not already a Lender hereunder, Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.01(a);
(g) any Incremental Term Loans that constitute additional term loans under a then existing tranche of term loans shall be made on the same terms and provisions (other than upfront fees) as apply to such outstanding term loans, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loans;
(h) any Incremental Term Loans that do not constitute additional term loans under a then existing tranche of term loans shall: (A) rank pari passu in right of payment priority with the Revolving Loans, (B) share ratably in rights in the Collateral and the Guaranty, (C) have a maturity date that is no earlier than the then-latest Maturity Date for any Loans, (D) have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of any then-existing Incremental Term Loan (it being understood that, subject to the approval foregoing, the amortization schedule applicable to such Incremental Term Loans shall be determined by the Company and the Lenders of such Incremental Term Loans) and (E) otherwise be on terms not materially more onerous, taken as a whole, to the Company than the existing Loans (except to the extent permitted above with respect to (i) the maturity date, (ii) amortization, (iii) the interest rate, and fees, (iv) other than terms which are applicable only after the then-latest Maturity Date or (v) other terms that are otherwise reasonably satisfactory to the Administrative Agent);
(i) the Administrative Agent shall have received additional commitments in its reasonable discretion a corresponding amount of such requested Incremental Facility Loans from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would it being understood and agreed that no existing Lender shall be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and provide an additional commitment);
(iij) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably agree), (ii) request relating to the date on which corporate or other necessary authority for such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after Facility Loans and the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment validity of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Facility Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans other matters relevant thereto, all in form and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and substance reasonably satisfactory to the Administrative Agent. The ; and
(k) each Incremental Term Facility and any Incremental Revolving Commitments shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.14 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent shall promptly notify and each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms providing a portion of the Incremental Term Loan Commitment or Facility and/or Incremental Revolving Credit CommitmentCommitments, as applicable; which such amendment, evidenced therebywhen so executed, without requiring shall amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the consent of Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.14. Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing such Incremental Term Loan Commitments or Loans and/or Incremental Revolving Credit Commitments.
(c) All , as applicable, and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Term Loans made Facility Amendment shall be subject solely to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless satisfaction on the date thereof of such effectiveness, the Administrative Agent shall have received a certificate certifying that each of the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to above and such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to other conditions as requested by the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing Lenders under the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is Loans established in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated)connection therewith.
(el) Immediately after giving effect to This Section shall supersede any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, provisions in Section 2.13 or 10.01 to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loancontrary.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 1 contract
Sources: Third Amendment to Second Amended and Restated Credit Agreement (Methode Electronics Inc)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions occasions, up to three in the aggregate, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed $30,000,000, provided that the aggregate amount of all Incremental Facility Maximum Amount Revolving Credit Commitments shall not exceed $10,000,000 from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith); provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreementdiscretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree1,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), Agent) and (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations). Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date, Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans Loans, and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Dateprovided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield sum of (A) the margin then in effect for Term Loans that are Eurocurrency Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”)Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurocurrency Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturitymaturity or, if the actual maturity date falls earlier than four years, the lesser number of years, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement to the extent not inconsistent consistent with the terms specified in clauses (i), (ii) and (iii) above applicable to the Term Loans hereunder shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative AgentAgent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced therebythereby as provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower (any such amendment, an “Incremental Amendment”) and furnished to the other parties hereto, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights in right of payment and prepayment and voting security with the initial Term Loans and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate certifying to that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to dated such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate date and executed by a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) Financial Officer of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromBorrower, (Aii) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in respect of any Incremental Term Loans or Incremental Revolving Loans by pro forma compliance with the date and time required hereunder with respect to the applicable Type of Loancovenants set forth in Section 7.07.
(fe) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of Loans.
(f) Each Incremental Revolving Loan shall contain terms and provisions identical to the same Classterms and conditions applicable to the Revolving Facility.
Appears in 1 contract
Increase in Commitments. Borrowers may request an increase in Commitments from time to time upon not less than thirty (30) days’ (or such shorter period as may be acceptable to Agent) notice to Agent, as long as (a) The the requested increase is in a minimum amount of $20,000,000 and is offered on the same terms as existing Commitments, (xb) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or total increases under this Section do not exceed $120,000,000 and no more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments than three (3) increases are made and (yc) the EMEA Borrower may, any other fees or expenses required to be paid by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, Borrowers in an aggregate principal amount (together connection with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which increase shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice mutually agreed. Agent shall promptly notify Lenders of the requested increase and, within five ten (510) Business DaysDays thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase its Commitment. Any Lender not responding within such period shall be deemed to have declined an increase. If ▇▇▇▇▇▇▇ fail to participate therein) commit to the full requested increase, Eligible Assignees may issue additional Commitments and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicablehereunder. Agent may allocate, in connection therewith; providedits discretion, further that each Incremental Term Lender and Incremental Revolving Credit Lenderthe increased Commitments among committing Lenders and, if not already a Lender hereundernecessary, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Eligible Assignees. Total Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the requested amount any “LIBOR floor” (or “EURIBOR floor”such lesser amount committed by ▇▇▇▇▇▇▇ and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses provided (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii6.2 are satisfied at such time; and (ii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) Collateral includes any Real Estate, flood insurance diligence and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall documentation have been true and correct completed as required by all Flood Laws or otherwise in a manner satisfactory to all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”Lenders. Agent, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basisBorrowers, and the U.S. Borrower agrees that Section 3.02 new and existing Lenders shall apply execute and deliver such documents and agreements as Agent reasonably deems appropriate to any conversion evidence the increase in and allocations of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by Commitments. On the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loanseffective date of an increase, the scheduled amortization payments set forth in Section 2.13(b) required to be made after Revolver Usage and other exposures under the making of such Incremental Term Loans Commitments shall be ratably increased reallocated among Lenders, and settled by the aggregate principal amount Agent as necessary, in accordance with Lenders’ adjusted shares of such Incremental Term Loans of the same ClassCommitments.”
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Inari Medical, Inc.)
Increase in Commitments. (a) The (x) U.S. Borrower Borrowers may, by written notice to the Administrative Agent and the Arrangers at any time after the Closing Date and prior to the Revolving Commitment Termination Date, request on one or more occasions Incremental Term Loan Commitments and/or (but no more than three) occasions, Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount $50,000,000 from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, Lenders which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith); provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not and, solely with respect to be unreasonably withheldany Lender holding Incremental Dutch Revolving Commitments, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments Foreign Collateral Agent; provided further that after giving effect to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Commitments, the Total Dutch Revolving Credit Commitments only, each LC Issuer, to Commitment shall not exceed 15% of the extent such consent would have been required for assignments of any Total Revolving Loans or Revolving Commitments pursuant to this AgreementCredit Commitment. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 5,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), Agent) and (iii) whether such Incremental Term Loan Revolving Credit Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Incremental Dutch Revolving Credit Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or Incremental U.S. ObligationsRevolving Credit Commitments. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower Borrowers may seek Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and each additional banks, financial institutions and other institutional lenders who will become Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Revolving Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term LenderLenders in connection therewith. The U.S. Borrower Borrowers and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) Credit Assumption Agreement shall include the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (iinformation required under Section 2.17(a)(i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agentabove. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Revolving Credit Extension AmendmentAssumption Agreement, the Total Revolving Commitment shall be increased by the amount of the new Incremental Revolving Commitments and this Agreement otherwise shall be deemed amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring thereby as provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto. The maturity date of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or each Incremental Revolving Credit CommitmentsCommitment shall be the Revolving Facility Termination Date. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and shall be on the same or, to the extent deemed satisfactory to the Administrative Agent, substantially similar, terms and conditions set forth herein.
(c) All Incremental Term Loans made to Notwithstanding the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien prioritiesforegoing, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or no Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate certifying to that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to dated such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate date and executed by a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) Financial Officer of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromCompany, (Aii) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basisClosing Date, and (iii) the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by Credit Parties would be in pro forma compliance with the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments covenants set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class7.07, if then applicable.
Appears in 1 contract
Sources: Credit Agreement (Nn Inc)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written Upon notice to the Administrative Agent Agent, at any time after the Closing Effective Date, the Borrower may request on that Additional Revolving Credit Commitments be provided by the existing Lenders (in accordance with their Pro Rata Share), and if such Lenders are unwilling to provide such Additional Revolving Credit Commitments (it being understood that a Lender shall be deemed to be unwilling to provide such Additional Revolving Credit Commitments if it has not affirmatively responded to the Administrative Agent within 10 Business Days after ▇▇▇▇▇▇▇▇’s request), (x) the Lead Arranger will use its reasonable efforts, subject to compensation to be agreed, to obtain one or more occasions Incremental Term Loan Persons that are Eligible Assignees to provide such Additional Revolving Credit Commitments and/or Incremental (y) the Borrower may identify one or more Persons that are Eligible Assignees to provide such Additional Revolving Credit Commitments; provided that (i) after giving effect to any such Additional Revolving Credit Commitments, the aggregate amount of Additional Revolving Credit Commitments that have been added pursuant to this Section 2.18 shall not exceed $160,000,000, (ii) each request for Additional Revolving Credit Commitments shall be in minimum increments of $20,000,000, (iii) the Borrower shall not make more than five such requests for Additional Revolving Credit Commitments and (yiv) the EMEA terms of any Additional Revolving Credit Advances shall be the same as those for the existing Revolving Credit Advances, except that the Borrower may, by written notice shall be permitted to pay upfront fees to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Additional Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate Lenders in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not amounts to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligationsagreed. Notwithstanding anything contained herein to the contrary, it is acknowledged (x) the Lender Parties shall not be obligated to commit to the Additional Revolving Credit Commitments, and agreed that all Incremental (y) no Additional Revolving Credit Commitments are shall be provided except to be Revolving Commitments the extent within the limitations of the “Maximum ABL Facility Amount” under and based on as defined in the terms and conditions set forth herein for Revolving Commitments and Revolving LoansABL Intercreditor Agreement.
(b) The Applicable Any Additional Revolving Credit Commitments to provide Additional Revolving Credit Advances under this Section 2.18 shall be added to this Agreement pursuant to an amendment (the “Additional Revolving Credit Commitment Amendment”) among the Parent, the Borrower, the Administrative Agent and the Additional Revolving Credit Lenders. As conditions precedent to the effectiveness of the Additional Revolving Credit Commitment Amendment, the Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent (x) a certificate on behalf of the Borrower dated as of the effective date (the “Additional Revolving Credit Commitments Effective Date”) signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties of the Loan Parties contained in Article IV and the other Loan Documents are true and correct in all material respects on and as of the Additional Revolving Credit Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date (in which case such representations and warranties are true on and of such earlier date) and without duplication of any materiality qualifiers applicable thereto, and (ii) no Event of Default exists immediately before or immediately after giving effect to such Additional Revolving Credit Extension Amendment Commitment, the making of Additional Revolving Credit Advances in respect thereof and any Investment to be consummated in connection therewith, and (y) if any Loan Party or any of its Subsidiaries owns any Margin Stock, an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrower, together with such other documentation as the Administrative Agent shall reasonably specify request, in order to evidence enable the Incremental Term Loan Commitment Agents and the Lenders to comply with any of such Incremental Term Lenderthe requirements under Regulations T, U or X of the Board. The U.S. Borrower and On each Incremental Additional Revolving Credit Lender Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Revolving Credit Commitment (i) shall execute become a “Revolving Credit Lender” for all purposes of this Agreement and deliver the other Loan Documents and (ii) in the case of any Additional Revolving Credit Commitment, shall make an Additional Revolving Credit Advance to the Company in a principal amount equal to such Additional Revolving Credit Commitment, and such Additional Revolving Credit Advance shall be a “Revolving Credit Advance” for all purposes of this Agreement and the other Loan Documents.
(c) Any Additional Revolving Credit Commitment Amendment and any related documentation may, without the consent of any Lenders (other than Additional Revolving Credit Lenders that are party to such Additional Revolving Credit Commitment Amendment), effect such amendments to this Agreement and the other Loan Documents as may be reasonably necessary, in the reasonable opinion of the Administrative Agent an (in consultation with the Borrower), to effect the provisions of this Section 2.18. Any Additional Revolving Credit Extension Amendment and such other documentation as Advances made pursuant to this Section 2.18 shall be evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 9.07(d).
(d) This Section 2.18 shall reasonably specify supersede any provisions in Section 9.01 to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lendercontrary. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date Notwithstanding any other provision of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii)Loan Document, the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined Loan Documents may be amended by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory Loan Parties, if necessary, to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as provide for terms applicable to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
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Increase in Commitments. Subject to the terms and conditions set forth herein, the Company shall have the right, from time to time and upon at least ten (a10) The Business Days’ (xor such shorter period as may be agreed by the Administrative Agent) U.S. Borrower may, by prior written notice to the Administrative Agent at any time after the Closing Date(an “Incremental Request”), to request on to incur additional term loans under a then existing tranche and/or add one or more occasions additional tranches of “tranche a” term loans (“Other Term Loans” and, together with any additional term loans under a then existing tranche incurred pursuant to this Section 2.14, the “Incremental Term Loan Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) and/or increase the Aggregate Revolving Commitments and/or (the “Incremental Revolving Credit Commitments”; and revolving loans made thereunder the “Incremental Revolving Loans”; the Incremental Revolving Loans, together with the Incremental Term Loans are referred to herein as the “Incremental Facility Loans”) subject, however, in any such case, to satisfaction of the following conditions precedent:
(a) the aggregate amount of all Incremental Revolving Commitments and Incremental Term Loans effected pursuant to this Section 2.14 shall not exceed $200,000,000;
(yb) on the EMEA Borrower maydate on which any Incremental Facility Amendment is to become effective, by written notice both immediately prior to and immediately after giving effect to the Administrative Agent at any time after incurrence of such Incremental Facility Loans (assuming that the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal full amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed of the Incremental Facility Maximum Amount from one or more Loans shall have been funded on such date) and any related transactions, no Default shall have occurred and be continuing (but subject to Section 1.10 with respect to any Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each Facility the proceeds of which will be used to finance any Limited Condition Acquisition);
(c) after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Loan Parties shall be entitled in compliance with the financial covenants set forth in Section 7.13;
(d) the representations and warranties set forth in Article V shall be true and correct in all material respects on and as of the date on which such Incremental Facility Amendment is to agree or decline become effective, except to participate the extent that such representations and warranties specifically refer to an earlier date, in its sole discretion; provided which case they shall be true and correct in all material respects as of such earlier date, and except that if any such existing Lender does not respond to such written notice within five for purposes of this clause (5d), the representations and warranties contained in clauses (a) Business Days, such Lender and (b) of Section 5.05 shall be deemed to have declined refer to participate thereinthe most recent statements furnished pursuant to clauses (a) and additional banks(b), financial institutions and other institutional lenders who will become respectively, of Section 6.01 (but subject to Section 1.10 with respect to any Incremental Term Lenders and/or Facility the proceeds of which will be used to finance any Limited Condition Acquisition);
(e) unless otherwise agreed by the Administrative Agent, such Incremental Revolving Credit Lenders, as applicable, Facility Loans shall be in connection therewitha minimum amount of $25,000,000 and in integral multiples of $5,000,000 in excess thereof; provided, further that each such Incremental Facility Loans may be in an amount equal to the remaining aggregate amount of Incremental Revolving Commitments and Incremental Term Lender and Loans permitted to be obtained pursuant to clause (a) above;
(f) any Incremental Revolving Credit Lender, if not already a Lender hereunder, Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.01(a);
(g) any Incremental Term Loans that constitute additional term loans under a then existing tranche of term loans shall be made on the same terms and provisions (other than upfront fees) as apply to such outstanding term loans, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loans;
(h) in the case of any Other Term Loans, such Other Term Loans shall: (A) rank pari passu in right of payment priority with the existing Term Loans, (B) share ratably in rights in the Guaranty and Parent Guaranty, (C) have a maturity date that is no earlier than the then-latest Maturity Date for any Loans, (D) have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of the Term A-1 Loan (it being understood that, subject to the approval foregoing, the amortization schedule applicable to such Incremental Term Loans shall be determined by the Company and the Lenders of such Incremental Term Loans) and (E) otherwise be on terms not materially more onerous, taken as a whole, to the Company than the existing Term Loans (except to the extent permitted above with respect to the maturity date, amortization, interest rate, and fees, and other than terms which are applicable only after the then-latest Maturity Date or are reasonably satisfactory to the Administrative Agent);
(i) the Administrative Agent shall have received additional commitments in its reasonable discretion a corresponding amount of such requested Incremental Facility Loans from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would it being understood and agreed that no existing Lender shall be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and provide an additional commitment);
(iij) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably agree), (ii) request relating to the date on which corporate or other necessary authority for such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after Facility Loans and the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment validity of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Facility Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans other matters relevant thereto, all in form and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and substance reasonably satisfactory to the Administrative Agent. The ; and
(k) Each Incremental Term Facility and any Incremental Revolving Commitments shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.14 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent shall promptly notify and each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms providing a portion of the Incremental Term Loan Commitment or Facility and/or Incremental Revolving Credit CommitmentCommitments, as applicable; which such amendment, evidenced therebywhen so executed, without requiring shall amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the consent of Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.14. Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing such Incremental Term Loan Commitments or Loans and/or Incremental Revolving Credit Commitments.
(c) All , as applicable, and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Term Loans made Facility Amendment shall be subject solely to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless satisfaction on the date thereof of such effectiveness, the Administrative Agent shall have received a certificate certifying that each of the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to above and such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to other conditions as requested by the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing Lenders under the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is established in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated)connection therewith.
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
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Increase in Commitments. Subject to the terms and conditions set forth herein, the Company shall have the right, from time to time and upon at least ten (a10) The Business Days’ (xor such shorter period as may be agreed by the Administrative Agent) U.S. Borrower may, by prior written notice to the Administrative Agent at any time after the Closing Date(an “Incremental Request”), to request on to incur additional term loans under a then existing tranche and/or add one or more occasions additional tranches of “tranche a” term loans (“Other Term Loans” and, together with any additional term loans under a then existing tranche incurred pursuant to this Section 2.14, the “Incremental Term Loan Loans”; and any credit facility for providing for any Incremental Term Loans being referred to as an “Incremental Term Facility”) and/or increase the Aggregate Revolving Commitments and/or (the “Incremental Revolving Credit Commitments”; and revolving loans made thereunder the “Incremental Revolving Loans”); the Incremental Revolving Loans, together with the Incremental Term Loans are referred to herein as the “Incremental Facility Loans”) subject, however, in any such case, to satisfaction of the following conditions precedent:
(a) the aggregate amount of all Incremental Revolving Commitments and Incremental Term Loans effected pursuant to this Section 2.14 shall not exceed $200,000,000;
(yb) on the EMEA Borrower maydate on which any Incremental Facility Amendment is to become effective, by written notice both immediately prior to and immediately after giving effect to the Administrative Agent at any time after incurrence of such Incremental Facility Loans (assuming that the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal full amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed of the Incremental Facility Maximum Amount from one or more Loans shall have been funded on such date) and any related transactions, no Default shall have occurred and be continuing (but subject to Section 1.10 with respect to any Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each Facility the proceeds of which will be used to finance any Limited Condition Acquisition);
(c) after giving effect to the incurrence of such Incremental Facility Loans (assuming the full amount of the Incremental Facility Loans have been funded) and any related transactions, on a Pro Forma Basis, the Loan Parties shall be entitled in compliance with the financial covenants set forth in Section 7.13;
(d) the representations and warranties set forth in Article V shall be true and correct in all material respects on and as of the date on which such Incremental Facility Amendment is to agree or decline become effective, except to participate the extent that such representations and warranties specifically refer to an earlier date, in its sole discretion; provided which case they shall be true and correct in all material respects as of such earlier date, and except that if any such existing Lender does not respond to such written notice within five for purposes of this clause (5d), the representations and warranties contained in clauses (a) Business Days, such Lender and (b) of Section 5.05 shall be deemed to have declined refer to participate thereinthe most recent statements furnished pursuant to clauses (a) and additional banks(b), financial institutions and other institutional lenders who will become respectively, of Section 6.01 (but subject to Section 1.10 with respect to any Incremental Term Lenders and/or Facility the proceeds of which will be used to finance any Limited Condition Acquisition);
(e) unless otherwise agreed by the Administrative Agent, such Incremental Revolving Credit Lenders, as applicable, Facility Loans shall be in connection therewitha minimum amount of $25,000,000 and in integral multiples of $5,000,000 in excess thereof; provided, further that each such Incremental Facility Loans may be in an amount equal to the remaining aggregate amount of Incremental Revolving Commitments and Incremental Term Lender and Loans permitted to be obtained pursuant to clause (a) above;
(f) any Incremental Revolving Credit Lender, if not already a Lender hereunder, Commitments shall be made on the same terms and provisions (other than upfront fees) as apply to the existing Revolving Commitments, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from the existing revolving credit facility set forth in Section 2.01(a);
(g) any Incremental Term Loans that constitute additional term loans under a then existing tranche of term loans shall be made on the same terms and provisions (other than upfront fees) as apply to such outstanding term loans, including with respect to maturity date, interest rate and prepayment provisions, and shall not constitute a credit facility separate and apart from such term loans;
(h) in the case of any Other Term Loans, such Other Term Loans shall: (A) rank pari passu in right of payment priority with the existing Term Loans, (B) share ratably in rights in the Guaranty and Parent Guaranty, (C) have a maturity date that is no earlier than the then-latest Maturity Date for any Loans, (D) have a Weighted Average Life to Maturity that is no shorter than the Weighted Average Life to Maturity of the Term A-1 Loan (it being understood that, subject to the approval foregoing, the amortization schedule applicable to such Incremental Term Loans shall be determined by the Company and the Lenders of such Incremental Term Loans) and (E) otherwise be on terms not materially more onerous, taken as a whole, to the Company than the existing Term Loans (except to the extent permitted above with respect to the maturity date, amortization, interest rate, and fees, and other than terms which are applicable only after the then-latest Maturity Date or are reasonably satisfactory to the Administrative Agent);
(i) the Administrative Agent shall have received additional commitments in its reasonable discretion a corresponding amount of such requested Incremental Facility Loans from either existing Lenders and/or one or more other institutions that qualify as Eligible Assignees (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would it being understood and agreed that no existing Lender shall be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and provide an additional commitment);
(iij) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall have received customary closing certificates and legal opinions and all other documents (including resolutions of the board of directors of the Loan Parties) it may reasonably agree), (ii) request relating to the date on which corporate or other necessary authority for such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after Facility Loans and the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment validity of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Facility Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans other matters relevant thereto, all in form and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and substance reasonably satisfactory to the Administrative Agent. The ; and
(k) Each Incremental Term Facility and any Incremental Revolving Commitments shall be evidenced by an amendment (an “Incremental Facility Amendment”) to this Agreement, giving effect to the modifications permitted by this Section 2.14 (and subject to the limitations set forth in the immediately preceding paragraph), executed by the Loan Parties, the Administrative Agent shall promptly notify and each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms providing a portion of the Incremental Term Loan Commitment or Facility and/or Incremental Revolving Credit CommitmentCommitments, as applicable; which such amendment, evidenced therebywhen so executed, without requiring shall amend this Agreement as provided therein. Each Incremental Facility Amendment shall also require such amendments to the consent of Loan Documents, and such other new Loan Documents, as the Administrative Agent reasonably deems necessary or appropriate to effect the modifications and credit extensions permitted by this Section 2.14. Neither any Incremental Facility Amendment, nor any such amendments to the other Loan Documents or such other new Loan Documents, shall be required to be executed or approved by any Lender, other than the Lenders providing such Incremental Term Loan Commitments or Loans and/or Incremental Revolving Credit Commitments.
(c) All , as applicable, and the Administrative Agent, in order to be effective. The effectiveness of any Incremental Term Loans made Facility Amendment shall be subject solely to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless satisfaction on the date thereof of such effectiveness, the Administrative Agent shall have received a certificate certifying that each of the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to above and such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to other conditions as requested by the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing Lenders under the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is established in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated)connection therewith.
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
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Increase in Commitments. (a) The (x) U.S. At any time, Borrower may, may by written notice to the Administrative Agent at and without the consent of the other Lenders hereunder request increases to the existing Revolving Commitments (any time after the Closing Datesuch increase, request on one or more occasions Incremental Term Loan Commitments and/or an “Incremental Revolving Credit Commitments Commitment”). Each Incremental Revolving Commitment shall be in a minimum amount of at least $5.0 million and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with of all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreementshall not exceed $100.0 million. Such notice shall set forth specify the date (ian “Increased Amount Date”) on which Borrower proposes that the Incremental Revolving Commitments be made available, which shall be a date not less than 5 Business Days after the date on which such notice is delivered to the Administrative Agent, and the amount of the Incremental Term Loan Commitments Revolving Commitments. The Administrative Agent shall notify Borrower in writing of the identity of each Lender or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be other financial institution reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower Agent and the Administrative Agent Borrower (each, an “Incremental Revolving Lender”) to whom the Incremental Revolving Commitments have been allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Revolving Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Commitment. Such Incremental Revolving Commitments shall reasonably agree), become effective as of such Increased Amount Date; provided that (ii1) no Default or Event of Default has occurred and is continuing or would result after giving effect to the date on which making of such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to Loans or the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms application of the Incremental Term Loans or Incremental Revolving Loansproceeds therefrom, as applicable, to be made thereunder; provided, that (i2) such increase in the final maturity date of any Other Term Loans Commitments shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds evidenced by one or more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans joinder agreements (the amount of such excess above 50 basis points being referred to herein as the “Yield DifferentialIncrease Joinder”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased ) executed by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the each Lender making such Incremental Term Lenders Revolving Commitment, in form and reasonably substance satisfactory to the Administrative Agenteach of them. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced therebyIncrease Joinder may, without requiring the consent of any other LenderLenders, effect such amendments to this Agreement and the other than Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.22, and each shall be recorded in the register, each of which shall be subject to the requirements set forth in Section 2.15(e). All terms and conditions of any Revolving Loans or other Obligations relating to Incremental Revolving Commitments shall be on the same terms and conditions as those applicable to Revolving Commitments, Revolving Loans and other Obligations under this Agreement. In addition, unless otherwise specifically provided herein, all references in Loan Documents to Revolving Loans shall be deemed, unless the context otherwise requires, to include references to Revolving Loans made pursuant to Incremental Revolving Commitments made pursuant to this Agreement.
(b) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Lenders providing shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the existing Revolving Lenders, at the principal amount thereof, such interests in the outstanding Revolving Loans and participations in Letters of Credit and Swingline Loans outstanding on such Increased Amount Date that will result in, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit and Swingline Loans being held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Term Loan Revolving Commitments or to the Revolving Commitments, (ii) each Incremental Revolving Credit CommitmentsCommitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and have the same terms as any existing Revolving Loan and (iii) each Incremental Revolving Lender shall become a Lender with respect to the Revolving Commitments and all matters relating thereto. Borrower shall make any payments required pursuant to Section 2.13 in connection with any adjustment of Revolving Loans pursuant to this Section 2.22(b). Assignments made to effect this Section 2.22(b) shall be made in accordance with Section 11.04.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the The Administrative Agent shall have received a certificate certifying that notify the conditions set forth Lenders promptly upon receipt of Borrower’s notice of an Increased Amount Date and, in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or respect thereof, the Incremental Revolving Credit Commitment (but such certification shall not be required to Commitments and the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated)Lenders.
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
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Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any from time after the Closing Dateto time, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, and/or Other Revolving Credit Commitments in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Revolving Credit Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Agent (i) the Administrative Agent in its reasonable discretion (such consent which approval shall not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Revolving Credit Commitments or the Incremental Other Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable or equal to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agreeremaining Incremental Revolving Credit Amount), (ii) the date on which such Incremental Term Loan Revolving Credit Commitments or Incremental Other Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), Agent) and (iii) whether such the Borrower is requesting Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Revolving Credit Commitments or commitments to make term revolving loans with terms different from the Closing Date Term Revolving Loans (“Other Term Revolving Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans).
(b) The Applicable Borrower may seek Incremental Revolving Credit Commitments and/or Other Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, subject to the approval of the Agent (which approval shall not be unreasonably withheld), additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment or the Other Revolving Credit Commitments, as applicable, of such Incremental Revolving Credit Lender. Each Additional Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Revolving Loans or Incremental Other Revolving Loans, as applicable, Loans to be made thereunder; providedprovided that, that (i) without the prior written consent of all Lenders, the final maturity date of any Other Term Revolving Loans shall be no earlier than the Latest Revolving Credit Maturity Date, .
(iic) the weighted average life The Applicable Rate with respect to maturity of any Other Term Incremental Revolving Loans shall be no shorter than the weighted average life to maturity of same as the Closing Date Term Applicable Rate for the existing Revolving Loans and any outstanding Incremental Term Loans and (iii) the Applicable Rate with respect to any Other Term Revolving Loans made within shall not be greater than the first twelve Applicable Rate for the existing Revolving Loans; provided that the Applicable Rate of the existing Revolving Loans may be increased (12but may not be decreased) months after to equal the Closing Date, if the Initial Yield on Applicable Rate for such Incremental Revolving Loans or such Other Term Revolving Loans exceeds by more than 50 basis points to satisfy the Initial Yield requirements of this paragraph (c). The other terms of any Incremental Revolving Loans shall be the same as the terms of the Term other Revolving Loans. The other terms of any Other Revolving Loans that are Eurocurrency Loans and the Incremental Revolving Credit Assumption Agreement in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)respect thereof, then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) extent not consistent with the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, terms applicable to the Revolving Loans hereunder, shall otherwise be reasonably satisfactory to the Agent and, to the extent that such Term Loans Incremental Revolving Credit Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the date such Term Loans Borrower or are made exceeds the Adjusted Eurocurrency Rate) plus (y) if more favorable to the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where Revolving Loans, the amount existing Lenders shall be entitled to the benefit of such discount is equated to interest based rights and provisions so long as such Other Revolving Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on an assumed four (4) year life to maturity, but excluding the part of any arrangement, underwriting, structuring or similar fees) directly or indirectly from Person effective as of the Applicable Borrower or any Subsidiary, the amount date of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) fourIncremental Revolving Credit Assumption Agreement. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Other Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans Commitments evidenced thereby as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause Section 9.02. Any such deemed amendment may be memorialized in writing by the Agent with the Borrower’s consent (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment not to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)unreasonably withheld) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions and furnished to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated)other parties hereto.
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
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Increase in Commitments. (a) The Increase in Revolving Credit Facility.
(xi) U.S. Borrower mayProvided no Event of Default has occurred and is continuing, by written upon notice to the Administrative Agent at any time after (which shall promptly notify the Closing Date, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) Lenders), the EMEA Administrative Borrower may, by written notice from time to time over the Administrative Agent at any time after the Closing Dateterm of this Agreement, request on one or more occasions Incremental Term Loan Commitments, an increase in the Revolving Credit Facility by an aggregate principal amount (together with for all Incremental Equivalent Debt outstanding at such timerequests) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or (any such increase in the Revolving Credit Facility, an “Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretionCommitment”); provided that if (i) any such existing request for an increase shall be in a minimum amount of $50,000,000, and (ii) in no event shall the aggregate amount of increases in respect of the Revolving Credit Facility effected under this Section 2.16(a), plus the aggregate amount of increases in respect of the Term Facility effected under Section 2.16(b) exceed the Incremental Amount. At the time of sending such notice, the Administrative Borrower (in consultation with the Administrative Agent) shall specify in such notice the time period within which each Lender does is requested to respond.
(ii) Each Revolving Credit Lender shall notify the Administrative Agent within such time period whether or not respond it agrees to increase its Revolving Credit Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Revolving Credit Percentage of such written notice requested increase. Any Revolving Credit Lender not responding within five (5) Business Days, such Lender time period shall be deemed to have declined to participate thereinincrease its Revolving Credit Commitment.
(iii) The Administrative Agent shall notify the Administrative Borrower and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental each Revolving Credit Lender of the Revolving Credit Lenders’ responses to each request made hereunder. To the extent existing Revolving Credit Lenders do not agree to provide the entire amount of such requested increase on the terms requested, as applicablethe Administrative Borrower may also invite additional Eligible Assignees to provide such Revolving Credit Commitments, provided that any such Eligible Assignees who agree to do so (together with any existing Revolving Credit Lender participating in connection therewith; providedany such increase, further that each Incremental Term Lender and Incremental each, an “Increasing Revolving Credit Lender, if not already ”) enters into a Lender hereunder, shall be joinder agreement in form and substance reasonably satisfactory to the Administrative Agent and subject to the approval of (i) the Administrative Agent in its reasonable discretion Agent, the Letter of Credit Issuers and the Swing Line Lender (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent same would be required for an assignment under Section 11.06). Nothing contained herein shall constitute, or otherwise be deemed to consent to be, a commitment on the assignment part of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental increase its Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth Commitment hereunder.
(iiv) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the The Administrative Agent), such minimum increments as the Applicable Borrower Agent and the Administrative Agent Borrower shall reasonably agree), determine (iiin their sole discretion) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity final allocation of such Other Term Loans increase (which allocation may be made to specific Lenders, and not others (despite the willingness of such other Lenders to provide any requested increase)) among Increasing Revolving Credit Lenders and Schedule 2.01 attached hereto shall be automatically updated to reflect the same and (B) four. The other terms the effective date (the “Revolving Facility Increase Effective Date”) of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agentany such increase. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, Lenders of the borrowings thereunder final allocation of such increase and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of LoanFacility Increase Effective Date.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
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Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Term Loan Maturity Date, request on one or more occasions occasions, up to three in the aggregate, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does ) in an aggregate principal amount not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewithexceed $75,000,000; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreementdiscretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,0005,000,000, in the case with increments of Incremental Term Loan Commitments denominated in Euro, €$1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agreethereafter), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), Agent) and (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations). Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date, and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans Loans, and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Dateprovided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield sum of (A) the margin then in effect for Term Loans that are Eurocurrency Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”)Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Eurodollar Rate on such Other Term Loans (which shall be increased by the amount of any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurocurrency Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive any an upfront fee (other than a customary arrangement or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar feesunderwriting fee) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (Aa) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement to the extent not inconsistent consistent with the terms specified in clauses (i), (ii) and (iii) above applicable to the Term Loans hereunder shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative AgentAgent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The terms of any Incremental Revolving Credit Commitments will be consistent with the terms of the Revolving Loans hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced therebythereby as provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower (any such amendment, an “Incremental Amendment”) and furnished to the other parties hereto, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights in right of payment and prepayment and voting security with the initial Term Loans and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate certifying to that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to dated such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate date and executed by a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) Financial Officer of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromBorrower, (Aii) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in respect of any Incremental Term Loans or Incremental Revolving Loans by pro forma compliance with the date and time required hereunder with respect to the applicable Type of Loancovenants set forth in Section 7.07.
(fe) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same ClassLoans.
Appears in 1 contract
Sources: Credit Agreement (Eastern Co)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice At any time prior to the Administrative Agent at any time after Business Day immediately preceding the Closing Revolving Maturity Date, request on the Borrower may effectuate one or more occasions Incremental Term Loan increases in the aggregate Revolving Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower mayeach such increase being a “Commitment Increase”), by written notice to the Administrative Agent at any time after the Closing Date, request on designating either one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed of the Incremental Facility Maximum Amount from one or more Incremental Term existing Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate which, in its sole discretion; provided that if any such existing Lender does not respond , may determine whether and to such written notice within five (5) Business Days, such Lender shall be deemed to have declined what degree to participate thereinin such Commitment Increase) and additional banks, financial institutions and or one or more other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further Eligible Assignees that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to at the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments oftime agree, in the case of Incremental Term Loan Commitments and/or Incremental any such Eligible Assignee that is an existing Lender to increase its Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000Commitment as such Lender shall so select (an “Increasing Lender”) and, in the case of Incremental Term Loan Commitments denominated in Euroany other Eligible Assignee that is not an existing Lender (an “Additional Lender”), €1,000,000 and to become a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency party to this Agreement as a Lender; provided, however, that (which currency i) each such Commitment Increase shall be reasonably acceptable equal to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree)at least $25,000,000, (ii) all Revolving Commitments and Advances provided pursuant to a Commitment Increase shall be available on the date on same terms as those applicable to the existing Revolving Commitments and Revolving Advances, as applicable, except as to upfront fees which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not may be less than 15 days nor more than 60 days after the date of such notice, unless otherwise as agreed to by between the Administrative Agent in its reasonable discretion)Borrower and such Increasing Lender or Additional Lender, as the case may be, (iii) whether the aggregate of all such Incremental Term Loan Commitments are to be Closing Date EMEA Term CommitmentsCommitment Increases shall not exceed $300,000,000, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) such Commitment Increase shall not effect an increase in the case aggregate Revolving Commitments if the Revolving Maturity Date has occurred. The Borrower shall provide prompt notice of Other Term Loans, whether such Other Term Loans are proposed Commitment Increase pursuant to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein this Section 2.15 to the contrary, it is acknowledged Administrative Agent and agreed that all Incremental Revolving Credit Commitments are the Lenders. This Section 2.15 shall not be construed to be Revolving Commitments and based create any obligation on the terms and conditions set forth herein Administrative Agent or any of the Lenders to advance or to commit to advance any credit to the Borrower or to arrange for Revolving Commitments and Revolving Loansany other Person to advance or to commit to advance any credit to the Borrower.
(b) The Applicable Borrower Commitment Increase shall become effective on the date (the “Increase Date”) on or prior to which each of following conditions shall have been satisfied: (i) the receipt by the Administrative Agent of (A) an agreement in form and each Incremental Term Lender shall execute and deliver substance reasonably satisfactory to the Administrative Agent an signed by the Borrower, each Increasing Lender and/or each Additional Credit Extension Amendment Lender, setting forth the Revolving Commitments, if any, of each such Increasing Lender and/or Additional Lender and, if applicable, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all the terms and provisions hereof binding upon each Lender and (B) such evidence of appropriate authorization on the part of the Borrower with respect to such Commitment Increase and such other documentation legal opinions as the Administrative Agent shall may reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Daterequest, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity funding by each Increasing Lender and Additional Lender of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect Revolving Advances to any Other Term Loans be made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by Lender to effect the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions requirement set forth in Section 4.02(iii2.5(c)(ii), (iii) shall be satisfied immediately receipt by the Administrative Agent of a certificate of an authorized officer of the Borrower certifying (A) both before and after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment Increase, no Default has occurred and is being used to consummate a Limited Condition Acquisition) and thatcontinuing, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any all representations and warranties to be made at by the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement Borrower in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be this Agreement are true and correct in all material respects (except for those that such materiality qualifier shall not be applicable to any representations and warranties that already are conditioned qualified or modified by “materiality” materiality in the text thereof), unless such representation or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate warranty relates to an earlier date, in date which case such representations and warranties shall have been remains true and correct in all material respects as of such earlier date (except for those that such materiality qualifier shall not be applicable to any representations and warranties that already are conditioned qualified or modified by “materiality” materiality in the text thereof), and (C) the pro forma compliance with the covenants in Sections 6.17, 6.18 and 6.19, after giving effect to such Commitment Increase, and (iv) receipt by the Increasing Lender or “material adverse effect”Additional Lender, which shall have been true as applicable, of all such fees as agreed to between such Increasing Lender and correct in all respects/or Additional Lender and the Borrower.
(c) on Notwithstanding any provision contained herein to the contrary, from and as after the date of such earlier date; provided that Commitment Increase, all calculations and payments of interest on the Revolving Advances shall take into account the actual Revolving Commitment of each Lender and the principal amount outstanding of each Revolving Advance made by such Lender during the relevant period of time.
(d) On such Increase Date if such Commitment Increase involves an increase in the aggregate Revolving Commitments, each Lender’s share of the Letter of Credit Exposure on such date shall automatically be deemed to the extent that the proceeds equal such Lender’s Revolving Pro Rata Share of Loans under any Incremental such Letter of Credit Obligations (such Revolving Credit Commitments and/or Incremental Term Loan Commitments are Pro Rata Share for such Lender to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required determined as of the time the definitive agreement Increase Date in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received accordance with its Revolving Commitment on such date as a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each percentage of the parties hereto hereby agrees that the Administrative Agent may take aggregate Revolving Commitments on such date) without further action by any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Classparty.
Appears in 1 contract
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided , provided, that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith); provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC IssuerIssuer and each Swing Line Lender, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), ) and (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations). Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion, provided, that if any such existing Lender does not respond to any request for Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments within five (5) Business Days of request therefor, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, later of (X) the maturity date of the Term Loans made on the Closing Date or (Y) the latest maturity date of any outstanding Incremental Term Loans and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans made on the Closing Date Term Loans and any outstanding Incremental Term Loans Loans, and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Dateincurred pursuant to this Section 2.17, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield sum of (A) the margin then in effect for Term Loans that are Eurocurrency Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”)Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurocurrency Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturitymaturity or, if the actual maturity date falls earlier than four years, the lesser number of years, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower (any such amendment, an “Incremental Amendment”) and furnished to the other parties hereto, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights in right of payment and prepayment and voting security with the initial Term Loans and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Subsidiary Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) 4.02 shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” , the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required thereintherein and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) Commitment shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Credit Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, provided, that to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided , provided, that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the (1) accuracy of representations and warranties as described in this clause (B) hereof shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered intointo and (2) the availability thereof shall be subject to customary “SunGard” limitations to the extent agreed by the Lenders providing such Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same ClassLoans.
Appears in 1 contract
Increase in Commitments. (a) The After the Closing Date but prior to the Maturity Date, the Borrower shall have the right to request from time to time additional Commitments (xthe “Additional Commitments”) U.S. in an aggregate amount not to exceed $150,000,000, each which request shall be made by the Borrower may, by giving written notice (the “Additional Commitment Notice”) to the Administrative Agent at any time after such details with respect thereto as are reasonably requested by the Closing DateAdministrative Agent. Each request for Additional Commitments shall request Additional Commitments in an amount not less than $25,000,000 (or such lesser amount approved by the Administrative Agent). Upon receipt of such request, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent shall notify the existing Lenders of the requested Additional Commitments and offer each such Lender an opportunity to participate at any time after its sole discretion in the Closing Date, request on one or more occasions Incremental Term Loan Additional Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any . Any existing Lender that does not agree (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any ) to provide a portion of the proposed Additional Commitments within 10 days after receipt from the Administrative Agent of such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banksparticipation in any amount of such proposed Additional Commitments. Notwithstanding any existing Lender’s rejection of any portion of the proposed Additional Commitments, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term existing Lender and Incremental Revolving Credit Lender, if not already shall remain a Lender hereunder, shall be subject to the approval of (i) terms and conditions hereof. In addition, the Borrower and the Administrative Agent in its reasonable discretion may offer to additional proposed Lenders that qualify as Eligible Assignees (including any required consent of the Administrative Agent and/or the Swingline Lender, such consent not to be unreasonably withheld, conditioned ) the opportunity to accept all or delayed), to the extent the Administrative Agent would be required to consent to the assignment a portion of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan proposed Additional Commitments. The allocation of the Additional Commitments or among the Incremental Revolving Credit Commitments being requested (which Lenders and Eligible Assignees who agree to accept any portion thereof shall be in minimum increments ofmade by the Borrower, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to consultation with the Administrative Agent). Upon the effectiveness of the Additional Commitments, such minimum increments as (i) each Eligible Assignee (that is not an existing Lender) which has been allocated any portion of the Applicable Borrower and the Administrative Agent Additional Commitments shall reasonably agree)execute an accession agreement to this Agreement, (ii) the date on Commitments of the existing Lenders which have been allocated any portion of the Additional Commitments shall be increased by such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion)amount, (iii) whether the Pro Rata Percentages of the Lenders (including the Eligible Assignees as the new Lenders) shall be adjusted to reflect such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitmentsallocations, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) if applicable, and subject to the payment of applicable amounts pursuant to Section 2.18 in connection therewith, the Borrower shall be deemed to have made such borrowings and repayments of the Revolving Loans, and the Lenders shall make such adjustments of outstanding Revolving Loans between and among them, as shall be necessary to effect the reallocation of the Commitments such that, after giving effect thereto, the Revolving Loans shall be held by the Lenders (including the Eligible Assignees as the new Lenders) ratably in accordance with their Commitments and (v) other changes shall be made to the Loan Documents as may be necessary to reflect the aggregate amount, if any, by which Lenders (including the Eligible Assignees as the new Lenders) have agreed to increase their respective Commitments or make new Commitments in response to the Borrower’s request for an increase in the aggregate Commitments pursuant to this Section 2.24 and which other changes do not adversely affect the rights of those Lenders who do not elect to increase their respective Commitments, in each case without the consent of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving LoansLenders other than those Lenders increasing their Commitments.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to Notwithstanding the Administrative Agent foregoing, an Additional Credit Extension Amendment and such other documentation as increase in the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms aggregate amount of the Incremental Term Loans or Incremental Revolving Loans, as applicable, Commitments pursuant to Section 2.24(a) shall be made thereunder; provided, that effective only if (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” Default or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuingcontinuing on the date such increase is to become effective; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event (ii) each of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein made by the Borrower in this Agreement and in the other Loan Documents shall be true and correct in all material respects (except for those representations on and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true as of the date of the Additional Commitment Notice and correct in all respects) the date such increase is to become effective with the same force and effect as if made on and as of such date (or, if any such representation or warrant is expressly stated to the same extent as though have been made on and as of that a specific date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier specific date); provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (Biii) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date such documents and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that certificates as the Administrative Agent or its counsel may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, request relating to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making authorization of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Classincrease.
Appears in 1 contract
Sources: Senior Unsecured Credit Agreement (Choice Hotels International Inc /De)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date and prior to the Revolving Facility Termination Date, request on one or more occasions Incremental Term Loan Commitments and/or occasions, up to three, in the aggregate, Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount $50,000,000 from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith); provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreementdiscretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretionAgent), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower may seek Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and each additional banks, financial institutions and other institutional lenders who will become Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Revolving Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term LenderLenders in connection therewith. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Revolving Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, Commitment evidenced thereby as applicable, evidenced thereby, without requiring provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent of any (not to be unreasonably withheld) and furnished to the other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitmentsparties hereto.
(c) All Incremental Term Loans made to Notwithstanding the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien prioritiesforegoing, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or no Incremental Revolving Credit Commitment shall become effective under this Section 2.17 2.14 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate certifying to that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to dated such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate date and executed by a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) Financial Officer of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromBorrower, (Aii) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the date and time required hereunder with respect to the applicable Type of Loan.
Closing Date, (fiii) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing shall have received an updated “Eagle 9” insurance policy which increases the coverage thereunder by the amount of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a Revolving Credit Commitment, (iv) the Borrower would be in pro rata basis, and forma compliance with the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments covenants set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.7.07. 43
Appears in 1 contract
Sources: Credit Agreement (Preferred Apartment Communities Inc)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing DateCovenant Amendment Period and prior to the Term Loan Maturity Date, request on one or more occasions occasions, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed $50,000,000 (provided that the aggregate amount of all Incremental Facility Maximum Amount Revolving Credit Commitments shall not exceed $10,000,000) from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith); provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreementdiscretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), Agent) and (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations). Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that that, without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date, Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans Loans, and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Dateprovided, further, that, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield sum of (A) the margin then in effect for Term Loans that are Eurocurrency EurodollarTerm SOFR Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”)Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate Eurodollar RateTerm SOFR on such Other Term Loans (which shall be increased by the amount any “LIBOR LIBORbenchmark floor” or “EURIBOR floor”, as applicable, applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurocurrency RateEurodollar RateTerm SOFR) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturitymaturity or, if the actual maturity date falls earlier than four years, the lesser number of years, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from Holdings, the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement to the extent not inconsistent consistent with the terms specified in clauses (i), (ii) and (iii) above applicable to the Term Loans hereunder shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative AgentAgent and, to the extent that such Incremental Term Loan Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on Holdings, the Borrower or any of their respective Subsidiaries that are more favorable to the Lenders making such Other Term Loans, the existing Lenders shall be entitled to the benefit of such rights and provisions so long as such Other Term Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on the part of any Person effective as of the date of such Incremental Term Loan Assumption Agreement. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced therebythereby as provided for in Section 11.12. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower (any such amendment, an “Incremental Amendment”) and furnished to the other parties hereto, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights in right of payment and prepayment and voting security with the initial Term Loans and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied and the Administrative Agent shall have received a certificate certifying to that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to dated such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate date and executed by a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) Financial Officer of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromBorrower, (Aii) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date, and (iii) the Borrower would be in respect of any Incremental Term Loans or Incremental Revolving Loans by pro forma compliance with the date and time required hereunder with respect to the applicable Type of Loancovenants set forth in Section 7.07.
(fe) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action actionactions as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency EurodollarTerm SOFR Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of Loans.
(f) Each Incremental Revolving Loan shall contain terms and provisions identical to the same Classterms and conditions applicable to the Revolving Facility.
Appears in 1 contract
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any from time after the Closing Dateto time, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, and/or Other Revolving Credit Commitments in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Revolving Credit Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided that if any such existing Lender does not respond to such written notice within five (5i) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Agent (i) the Administrative Agent in its reasonable discretion (such consent which approval shall not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement ) and (ii) in connection with no event shall any Incremental Revolving Credit Commitments onlyor Other Revolving Credit Commitments become effective if (x) prior to the Restructuring Date, each LC Issuerthe effectiveness of such commitments would cause the aggregate amount of Revolving Credit Commitments and Other Revolving Credit Commitments to exceed the principal amount of the Loans guaranteed by the Parent Guarantor pursuant to the Parent Guaranty and (y) the Agent has not received customary legal opinions, board resolutions and other customary closing certificates and closing documentation as required by the relevant Incremental Revolving Credit Assumption Agreement and, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments by the Agent, consistent with those required to be delivered in connection with a Borrowing pursuant to this AgreementSection 4.01 if prior to the Restructuring Date or Section 4.03 if on or after the Restructuring Date, and such additional customary documents and filings as the Agent may reasonably require. Such notice shall set forth (i) the amount of the Incremental Term Loan Revolving Credit Commitments or the Incremental Other Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable or equal to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agreeremaining Incremental Revolving Credit Amount), (ii) the date on which such Incremental Term Loan Revolving Credit Commitments or Incremental Other Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days 10 Business Days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), Agent) and (iii) whether such the Borrower is requesting Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Revolving Credit Commitments or commitments to make term revolving loans with terms different from the Closing Date Term Revolving Loans (“Other Term Revolving Loans”) and (iv) in ). Without limiting the case of Other Term Loansforegoing, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein as a further condition precedent to the contraryeffectiveness of any Incremental Revolving Credit Commitment and/or Other Revolving Credit Commitment, it is acknowledged and agreed that all the Borrower shall deliver to the Agent a certificate of the Borrower dated as of the date on which such Incremental Revolving Credit Commitments or Other Revolving Credit Commitments are requested to be become effective signed by a Financial Officer certifying that, before and after giving effect to such Incremental Revolving Commitments Credit Commitment and/or Other Revolving Credit Commitment, (x) the representations and based on the terms and conditions warranties set forth herein in Article III hereof (other than (1) prior to the Restructuring Date, Section 3.04, Section 3.16 and Section 3.17, and (2) on or after the Restructuring Date, Section 3.04) and in each other Loan Document are true and correct in all material respects on and as of the date thereof with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects on and as of such earlier date (provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof), and (y) no Event of Default, or event or condition that would constitute an Event of Default but for Revolving Commitments the requirement that notice be given or time elapse or both, has occurred and Revolving Loansis continuing.
(b) The Applicable Borrower may seek Incremental Revolving Credit Commitments and/or Other Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and, subject to the approval of the Agent (which approval shall not be unreasonably withheld), additional banks, financial institutions and other institutional lenders who will become Incremental Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment or the Other Revolving Credit Commitments, as applicable, of such Incremental Revolving Credit Lender. Each Additional Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Revolving Loans or Incremental Other Revolving Loans, as applicable, Loans to be made thereunder; providedprovided that, that without the prior written consent of all Lenders, (i) the final maturity date of any Other Term Revolving Loans shall be no earlier than the Latest Revolving Credit Maturity Date, Date and (ii) prior to the weighted average life Restructuring Date, the aggregate amount of Revolving Credit Commitments and Other Revolving Credit Commitments shall not at any time exceed the principal amount of the Loans guaranteed by the Parent Guarantor pursuant to maturity of the Parent Guaranty.
(c) The Applicable Rate with respect to any Other Term Incremental Revolving Loans shall be no shorter than the weighted average life to maturity of same as the Closing Date Term Applicable Rate for the existing Revolving Loans and any outstanding Incremental Term Loans and (iii) the Applicable Rate with respect to any Other Term Revolving Loans made within shall not be greater than the first twelve Applicable Rate for the existing Revolving Loans; provided that the Applicable Rate of the existing Revolving Loans may be increased (12but may not be decreased) months after to equal the Closing Date, if the Initial Yield on Applicable Rate for such Incremental Revolving Loans or such Other Term Revolving Loans exceeds by more than 50 basis points to satisfy the Initial Yield requirements of this paragraph (c). The other terms of any Incremental Revolving Loans shall be the same as the terms of the Term other Revolving Loans. The other terms of any Other Revolving Loans that are Eurocurrency Loans and the Incremental Revolving Credit Assumption Agreement in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)respect thereof, then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) extent not consistent with the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, terms applicable to the Revolving Loans hereunder, shall otherwise be reasonably satisfactory to the Agent and, to the extent that such Term Loans Incremental Revolving Credit Assumption Agreement contains any covenants, events of default, representations or warranties or other rights or provisions that place greater restrictions on the date such Term Loans Borrower or are made exceeds the Adjusted Eurocurrency Rate) plus (y) if more favorable to the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where Revolving Loans, the amount existing Lenders shall be entitled to the benefit of such discount is equated to interest based rights and provisions so long as such Other Revolving Loans remain outstanding and such additional rights and provisions shall be deemed automatically incorporated by reference into this Agreement, mutatis mutandis, as if fully set forth herein, without any further action required on an assumed four (4) year life to maturity, but excluding the part of any arrangement, underwriting, structuring or similar fees) directly or indirectly from Person effective as of the Applicable Borrower or any Subsidiary, the amount date of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) fourIncremental Revolving Credit Assumption Agreement. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Other Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans Commitments evidenced thereby as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause Section 9.02. Any such deemed amendment may be memorialized in writing by the Agent with the Borrower's consent (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment not to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)unreasonably withheld) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions and furnished to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated)other parties hereto.
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 1 contract
Increase in Commitments. (a) The From time to time (xbut not more than on 5 occasions) U.S. Borrower may, by written notice to during the Administrative Agent at any time period from and after the Closing Date, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments the Maximum Revolver Amount may be increased (each increase that satisfies the terms and (yconditions of this Section, an “Approved Increase”) by an amount not in excess of the EMEA Borrower may, Available Increase Amount at the option of Borrowers by delivery of a written notice from Administrative Borrower of a proposed increase to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, only if not already a Lender hereunder, shall be subject to the approval of (i) each of the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall conditions precedent set forth (i) the amount in Section 3.2 are satisfied as of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested Increase Effective Date (which shall be in minimum increments of, in the case as if Borrowers were requesting an extension of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agreecredit hereunder), (ii) if a Financial Covenant Period has commenced and is continuing, Borrowers have delivered to Agent updated pro forma Projections (after giving effect to the proposed increase) for Parent and its Restricted Subsidiaries reflecting compliance (to the extent required by Section 7) on a pro forma basis with the financial covenants in Section 7 for each month during the next 12 month period (on a month-by-month basis) following the Increase Effective Date in which such Financial Covenant Period is projected to be continuing, in form reasonably acceptable to Agent, (iii) Borrowers shall have (A) reached agreement with the prospective new Lenders (the “Prospective Lenders”) with respect to the amount of any supplemental closing fee to be paid to such Prospective Lenders on the Increase Effective Date and shall have communicated the amount of such supplemental closing fee to Agent, (B) reached agreement with the Prospective Lenders with respect to the interest rates applicable to the Advances to be made by such Prospective Lenders and shall have communicated the amount of such interest rates to Agent, (C) entered into an agreement with WFF and BOA regarding the payment of supplemental closing fees to be paid to each of them, such supplemental closing fees to be in an amount sufficient to provide each of them with closing fees (aggregating the closing fees paid on the Closing Date together with supplemental closing fees, if any, paid on a prior Increase Effective Date and the supplemental closing fees payable on the subject Increase Effective Date) on the amount of WFF’s and BOA’s Commitments equivalent (in percentage terms) to the closing fees payable to the Prospective Lenders (it being understood and agreed that once earned any closing fees or supplemental closing fees paid to WFF or BOA prior to any such date shall be nonrefundable, and neither WFF nor BOA shall be required to disgorge any such fees for any reason, including in the event that the closing fees or supplemental closing fees paid to WFF or BOA (individually or in the aggregate) is greater than the amount of closing fees or supplemental closing fees payable to the Prospective Lenders), (D) if the Base Rate Margin or the LIBOR Rate Margin, as the case may be, that is to be applicable to the Advances to be made by the Prospective Lenders is greater than the Base Rate Margin or the LIBOR Rate Margin, as the case may be, otherwise applicable to Advance hereunder, then the Base Rate Margin or the LIBOR Rate Margin, as the case may be, otherwise applicable to Advances hereunder following the Increase Effective Date shall automatically be increased by the amount of such excess, effective on the Increase Effective Date, and (E) paid any fees described in clauses (A) and (C) above to Agent for the account of the Prospective Lenders, WFF, and BOA, as applicable. Each such notice shall specify the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested the proposed increase is to become be effective (the “Increase Effective Date”), which date shall not be less than 15 days nor more than 60 days 10 Business Days after the date of such notice, unless otherwise agreed to by the Administrative Agent . Each proposed increase shall be in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) an amount of at least $10,000,000 and (iv) integral multiples of $10,000,000 in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loansexcess thereof.
(b) The Applicable Borrower and So long as each Incremental Term of the requirements set forth in Section 2.2(a) are satisfied, the increased Commitments with respect to an Approved Increase shall become effective, as of such Increase Effective Date.
(c) Agent shall invite each Lender to increase its Commitment (it being understood that no Lender shall execute and deliver be obligated to increase its Commitment) and, if sufficient Lenders do not agree to increases in their Commitments in an aggregate amount equal to the Administrative Approved Increase, may invite any other Person who is reasonably satisfactory to Agent and Borrowers to become a Lender in connection with an Additional Credit Extension Amendment Approved Increase by executing a joinder agreement, in form and such other documentation as the Administrative Agent shall substance reasonably specify satisfactory to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicableAgent, to which such Person, Borrowers, and Agent are party (the “Increase Joinder”). Such Increase Joinder may, with the consent of Borrowers and Required Lenders, effect such amendments to this Agreement and the other Loan Documents as may be made thereundernecessary or appropriate, in the opinion of Agent, to effectuate the provisions of this Section 2.2; provided, however, that (i) any amendment to effect the final maturity date agreements reached between the applicable parties pursuant to Section 2.2 (a)(iii) shall require only the consent of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii)Borrowers, the “MFN Protection”). As used in the prior sentencerelevant Prospective Lenders, “Initial Yield” shallWFF, as determined by the Administrative BOA, and Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise any amendment to cure any ambiguity, defect, or inconsistency as may be as agreed among necessary or appropriate, in the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative opinion of Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring require only the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment Borrowers and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower GuarantorAgent.
(d) No Incremental Term Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Commitment or Incremental Revolving Credit Commitment Document to Advances shall become effective under be deemed, unless the context otherwise requires, to include Advances made pursuant to the increased Commitments and Maximum Revolver Amount pursuant to this Section 2.17 unless 2.2. Advances made pursuant to the increased Commitments shall bear interest at the same rate that is then applicable to Advances made pursuant to this Agreement.
(e) To the extent any Advances or Letters of Credit are outstanding on the date Increase Effective Date, each of such effectiveness, the Administrative Agent shall have received Lenders having a certificate certifying that Commitment prior to the conditions set forth in Section 4.02(iiiIncrease Effective Date (the “Pre-Increase Revolver Lenders”) shall assign to any Lender which is acquiring a new or additional Commitment on the Increase Effective Date (the “Post-Increase Revolver Lenders”), and such Post-Increase Revolver Lenders shall purchase from each Pre-Increase Revolver Lender, at the principal amount thereof, such interests in the Advances and participation interests in Letters of Credit on such Increase Effective Date as shall be satisfied immediately necessary in order that, after giving effect to all such assignments and purchases, such Advances and participation interests in Letters of Credit will be held by Pre-Increase Revolver Lenders and Post-Increase Revolver Lenders ratably in accordance with their Pro Rata Share after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loanincreased Commitments.
(f) Each of The Advances, Commitments, and Maximum Revolver Amount established pursuant to this Section 2.2 shall constitute Advances, Commitments, and Maximum Revolver Amount under, and shall be entitled to all the parties hereto hereby agrees that benefits afforded by, this Agreement and the Administrative Agent may other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrowers shall take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans actions reasonably required by the Administrative Agent to ensure and demonstrate that the Liens granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect the foregoing. In addition, to the extent establishment of any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Classnew Commitments and Maximum Revolver Amount.
Appears in 1 contract
Sources: Credit Agreement (Stock Building Supply Holdings, Inc.)
Increase in Commitments. (a) The (x) U.S. At any time, Borrower may, may by written notice to the Administrative Agent and without the consent of the other Lenders hereunder request an increase to the existing Revolving Commitments (any such increase, an “Incremental Revolving Commitment”) or commitments to make additional Term B Loans (any such increase, an “Incremental Term B Commitment”). The Incremental Revolving Commitments and the Incremental Term B Commitments (collectively, the “Incremental Commitments”) shall be in minimum amounts of at any time least $5.0 million and the aggregate amount of all Incremental Commitments shall not exceed $75.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which Borrower proposes that the Incremental Commitments be made available, which shall be a date not less than 5 Business Days after the Closing Datedate on which such notice is delivered to the Administrative Agent, request on one and the amount of each Class of Incremental Commitment. The Administrative Agent shall notify Borrower in writing of the identity of each Lender or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice other financial institution reasonably acceptable to the Administrative Agent at (each, an “Incremental Lender”) to whom the Incremental Commitments have been allocated and the amounts of such allocations; provided that any time Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date; provided that (1) no Default or Event of Default has occurred and is continuing or would result after giving effect to the Closing Datemaking of such Incremental Commitments and Loans or the application of the proceeds therefrom, request on (2) such increase in the Commitments shall be evidenced by one or more occasions joinder agreements (the “Increase Joinder”) executed by Borrower, the Administrative Agent and each Lender making such Incremental Term Loan CommitmentsCommitment, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not form and substance satisfactory to exceed each of them. The Increase Joinder may, without the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as applicablemay be necessary or appropriate, which may include any existing Lender (in the opinion of the Administrative Agent, to effect the provisions of this Section 2.22, and each shall be recorded in the register, each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent requirements set forth in its reasonable discretion (such consent not Section 2.15(e). In addition, unless otherwise specifically provided herein, all references in Loan Documents to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Term B Loans shall be deemed, unless the context otherwise requires, to include references to Revolving Loans made pursuant to Incremental Revolving Commitments and Loans made pursuant to Incremental Term B Commitments (“Incremental Term Loans”), respectively, made pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower terms and each Incremental Term Lender shall execute and deliver provisions of Loans made pursuant to the Administrative Agent an Additional Credit Extension Amendment and such other documentation Incremental Commitments shall be as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that follows:
(i) the final maturity date terms and provisions of any Other Incremental Term Loans shall be, except as otherwise set forth herein or in the Increase Joinder, identical to the Term B Loans (it being understood that Incremental Term Loans may be no earlier than the Latest Maturity Date, part of an existing tranche of Term Loans);
(ii) the terms and provisions of Revolving Loans made pursuant to Incremental Revolving Commitments shall be identical to the Revolving Loans;
(iii) the weighted average life to maturity of any Other all Incremental Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Revolving Loans and any outstanding the existing Term B Loans;
(iv) the maturity date of Incremental Term Loans shall not be earlier than the Term B Maturity Date;
(v) the Applicable Margins for the Incremental Term Loans shall be determined by Borrower and the applicable Incremental Lenders; provided, however, that the Applicable Margins for the Incremental Term Loans shall not be greater than the highest Applicable Margins that may, under any circumstances, be payable with respect to Term B Loans plus 50 basis points (and the Applicable Margins applicable to the Term B Loans shall be increased to the extent necessary to achieve the foregoing).
(c) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (i) each of the existing Revolving Lenders shall assign to each of the Incremental Lenders having an Incremental Revolving Commitment (the “Incremental Revolving Lenders”), and each of the Incremental Revolving Lenders shall purchase from each of the existing Revolving Lenders, at the principal amount thereof, such interests in the outstanding Revolving Loans and participations in Letters of Credit and Swingline Loans outstanding on such Increased Amount Date that will result in, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit and Swingline Loans being held by existing Revolving Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (ii) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and have the same terms as any existing Revolving Loan and (iii) each Incremental Revolving Lender shall become a Lender with respect to the Revolving Commitments and all matters relating thereto. Borrower shall make any Other Term payments required pursuant to Section 2.13 in connection with any adjustment of Revolving Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred pursuant to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”Section 2.22(b). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal Assignments made to the sum of (xeffect this Section 2.22(b) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent in accordance with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative AgentSection 11.04. The Administrative Agent shall notify the Lenders promptly notify each Lender as to the effectiveness upon receipt of each Additional Credit Extension Amendment. Each Borrower’s notice of the parties hereto hereby agrees thatan Increased Amount Date and, upon the effectiveness of any Additional Credit Extension Amendmentin respect thereof, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Revolving Commitments and the Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower GuarantorLenders.
(d) No On any Increased Amount Date on which Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on B Commitments are effected, subject to the date satisfaction of such effectiveness, the Administrative Agent shall have received a certificate certifying that foregoing terms and conditions and the conditions set forth in Section 4.02(iii4.02, (i) shall be satisfied immediately after giving effect to such each Incremental Lender having an Incremental Term Loan B Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required make Term B Loans to Borrower in the extent such amount of its Incremental Term Loan Commitment or B Commitment, and (ii) each Incremental Revolving Credit Commitment is being used to consummate Term B Lender shall become a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including Lender with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant its Incremental Term Loan (including any Incremental Term Loan B Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated)all matters relating thereto.
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the The Administrative Agent shall have received a Notice notify the Lenders promptly upon receipt of Borrowing Borrower’s notice of an Increased Amount Date and, in respect of any thereof, the Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, Commitments and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same ClassLenders.
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Increase in Commitments. (a)
(a) The (x) U.S. Borrower may, by written Upon notice to the Administrative Agent Agent, at any time after the Closing Effective Date, the Borrower may request on that Additional Revolving Credit Commitments be provided by the existing Lenders (in accordance with their Pro Rata Share), and if such Lenders are unwilling to provide such Additional Revolving Credit Commitments (it being understood that a Lender shall be deemed to be unwilling to provide such Additional Revolving Credit Commitments if it has not affirmatively responded to the Administrative Agent within 10 Business Days after Borrower’s request), (x) the Lead Arranger will use its reasonable efforts, subject to compensation to be agreed, to obtain one or more occasions Incremental Term Loan Persons that are Eligible Assignees to provide such Additional Revolving Credit Commitments and/or Incremental (y) the Borrower may identify one or more financial institutions which are not existing Lenders (and which are not Loan Parties or Affiliates of Loan Parties) that are reasonably acceptable to the Administrative Agent to provide such Additional Revolving Credit Commitments; provided that (i) after giving effect to any such Additional Revolving Credit Commitments, the aggregate amount of Additional Revolving Credit Commitments that have been added pursuant to this Section 2.18 shall not exceed $125,000,000, (ii) each request for Additional Revolving Credit Commitments shall be in minimum increments of $20,000,000, (iii) the Borrower shall not make more than five such requests for Additional Revolving Credit Commitments and (yiv) the EMEA terms of any Additional Revolving Credit Advances shall be the same as those for the existing Revolving Credit Advances, except that the Borrower may, by written notice shall be permitted to pay upfront fees to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Additional Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate Lenders in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not amounts to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligationsagreed. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental the Lender Parties shall not be obligated to commit to the Additional Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving LoansCommitments.
(b) The Applicable Any Additional Revolving Credit Commitments to provide Additional Revolving Credit Advances under this Section 2.18 shall be added to this Agreement pursuant to an amendment (the “Additional Revolving Credit Commitment Amendment”) among the Parent, the Borrower, the Administrative Agent and the Additional Revolving Credit Lenders. As conditions precedent to the effectiveness of the Additional Revolving Credit Commitment Amendment, the Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent (x) a certificate on behalf of the Borrower dated as of the effective date (the “Additional Revolving Credit Commitments Effective Date”) signed by a Responsible Officer of the Borrower certifying that, before and after giving effect to such increase, (i) the representations and warranties of the Loan Parties contained in Article IV and the other Loan Documents are true and correct in all material respects on and as of the Additional Revolving Credit Commitments Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date (in which case such representations and warranties are true on and of such earlier date) and without duplication of any materiality qualifiers applicable thereto, (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, (iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 5.05 as of (A) the Additional Revolving Credit Extension Amendment Commitments Effective Date and (B) the last day of the most recently ended determination period after giving pro forma effect to such Additional Revolving Credit Commitment, the making of Additional Revolving Credit Advances in respect thereof and any Investment to be consummated in connection therewith, and (y) if any Loan Party or any of its Subsidiaries owns any Margin Stock, an updated Form U-1 (with sufficient additional originals thereof for each Lender), duly executed and delivered by the Borrower, together with such other documentation as the Administrative Agent shall reasonably specify request, in order to evidence enable the Incremental Term Loan Commitment Agents and the Lenders to comply with any of such Incremental Term Lenderthe requirements under Regulations T, U or X of the Board. The U.S. Borrower and On each Incremental Additional Revolving Credit Lender shall execute and deliver to the Administrative Agent Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental (i) shall become a “Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify ” for all purposes of this Agreement and the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, other Loan Documents and (ii) in the weighted average life to maturity case of any Other Term Loans Additional Revolving Credit Commitment, shall make an Additional Revolving Credit Advance to the Company in a principal amount equal to such Additional Revolving Credit Commitment, and such Additional Revolving Credit Advance shall be no shorter than a “Revolving Credit Advance” for all purposes of this Agreement and the weighted average life to maturity of the Closing Date Term Loans other Loan Documents.
(c) Any Additional Revolving Credit Commitment Amendment and any outstanding Incremental Term Loans and related documentation may, without the consent of any Lenders (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more other than 50 basis points the Initial Yield of the Term Loans Additional Revolving Credit Lenders that are Eurocurrency Loans party to such Additional Revolving Credit Commitment Amendment), effect such amendments to this Agreement and the other Loan Documents as may be reasonably necessary, in the same currency as such Other Term Loans (the amount opinion of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, to effect the provisions of this Section 2.18. Any Additional Revolving Credit Advances made pursuant to this Section 2.18 shall be equal evidenced by one or more entries in the Register maintained by the Administrative Agent in accordance with the provisions set forth in Section 9.07(d).
(d) This Section 2.18 shall supersede any provisions in Section 9.01 to the sum contrary. Notwithstanding any other provision of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any SubsidiaryLoan Document, the amount of such upfront fee or similar divided Loan Documents may be amended by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory Loan Parties, if necessary, to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as provide for terms applicable to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.ARTICLE III—Article III
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Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided , provided, that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith); provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), ) and (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations). Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower may seek Incremental Term Loan Commitments and Incremental Revolving Credit Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion, provided, that if any such existing Lender does not respond to any request for Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments within five (5) Business Days of request therefor, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Datelater of (X) the maturity date of the Term Loans made on the Closing Date or (Y) the latest maturity date of any outstanding Incremental Term Loans, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans made on the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield sum of (A) the margin then in effect for Term Loans that are Eurocurrency Eurodollar Loans plus (B) one-quarter of the amount of such upfront fee initially paid in respect of the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”)Loans. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Eurodollar Rate on such Other Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Other Term Loans on the date such Other Term Loans are made exceeds the Adjusted Eurocurrency Eurodollar Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturitymaturity or, if the actual maturity date falls earlier than four years, the lesser number of years, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent and the Borrower (any such amendment, an “Incremental Amendment”) and furnished to the other parties hereto, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights in right of payment and prepayment and voting security with the initial Term Loans and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Subsidiary Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless (i) on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) 4.02 shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” , the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required thereintherein and (ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) Commitment shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Credit Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, provided, that to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided , provided, that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the (1) accuracy of representations and warranties as described in this clause (B) hereof shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered intointo and (2) the availability thereof shall be subject to customary “SunGard” limitations to the extent agreed by the Lenders providing such Loans. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Eurodollar Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same ClassLoans.
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Increase in Commitments. (a) The (x) U.S. Borrower may, by written Upon notice to the Administrative Agent Agent, at any time after the Closing Effective Date, the Borrower may request on that Additional Revolving Credit Commitments be provided by the existing Lenders (in accordance with their Pro Rata Share), and if such Lenders are unwilling to provide such Additional Revolving Credit Commitments (it being understood that a Lender shall be deemed to be unwilling to provide such Additional Revolving Credit Commitments if it has not affirmatively responded to the Administrative Agent within 10 Business Days after Borrower’s request), (x) the Lead Arranger will use its reasonable efforts, subject to compensation to be agreed, to obtain one or more occasions Incremental Term Loan Persons that are Eligible Assignees to provide such Additional Revolving Credit Commitments and/or Incremental (y) the Borrower may identify one or more financial institutions which are not existing Lenders that are reasonably acceptable to the Administrative Agent to provide such Additional Revolving Credit Commitments; provided that (i) after giving effect to any such Additional Revolving Credit Commitments, the aggregate amount of Additional Revolving Credit Commitments that have been added pursuant to this Section 2.18 shall not exceed $100,000,000, (ii) each request for Additional Revolving Credit Commitments shall be in minimum increments of $20,000,000, (iii) the Borrower shall not make more than five such requests for Additional Revolving Credit Commitments and (yiv) the EMEA terms of any Additional Revolving Credit Advances shall be the same as those for the existing Revolving Credit Advances, except that the Borrower may, by written notice shall be permitted to pay upfront fees to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Additional Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate Lenders in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not amounts to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligationsagreed. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental the Lender Parties shall not be obligated to commit to the Additional Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving LoansCommitments.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Any Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender Commitments to provide Additional Revolving Credit Advances under this Section 2.18 shall execute and deliver be added to this Agreement pursuant to an amendment (the Administrative Agent an “Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify Amendment”) among the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii)Parent, the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative AgentAdditional Revolving Credit Lenders. The Administrative Agent shall promptly notify each Lender as As a condition precedent to the effectiveness of each the Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment Amendment, the Borrower shall become effective under this Section 2.17 unless on the date of such effectiveness, deliver to the Administrative Agent shall have received a certificate on behalf of the Borrower dated as of the effective date (the “Additional Revolving Credit Commitments Effective Date”) signed by a Responsible Officer of the Borrower certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately that, before and after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromincrease, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (Bi) the representations and warranties of the Loan Parties contained herein in Article IV and in the other Loan Documents shall be are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that dateAdditional Revolving Credit Commitments Effective Date, except to the extent that such representations and warranties specifically relate refer to an earlier datedate and without duplication of any materiality qualifiers applicable thereto), (ii) no Default or Event of Default exists immediately before or immediately after giving effect to such addition, (iii) the Borrower and its Subsidiaries shall be in which case such representations and warranties shall have been true and correct compliance with the covenant set forth in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and Section 5.05 as of such earlier date; provided that to (A) the extent that the proceeds of Loans under any Incremental Additional Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations Effective Date and warranties as described in this clause (B) the last day of the most recently ended determination period after giving pro forma effect to such Additional Revolving Credit Commitment, the making of Additional Revolving Credit Advances in respect thereof and any Investment to be consummated in connection therewith. On each Additional Revolving Credit Commitments Effective Date, each applicable Lender, Eligible Assignee or other Person which is providing an Additional Revolving Credit Commitment (i) shall become a “Revolving Credit Lender” for all purposes of this Agreement and the other Loan Documents and (ii) in the case of any Additional Revolving Credit Commitment, shall make an Additional Revolving Credit Advance to the Company in a principal amount equal to such Additional Revolving Credit Commitment, and such Additional Revolving Credit Advance shall be required as a “Revolving Credit Advance” for all purposes of this Agreement and the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loanother Loan Documents.
(fc) Each Any Additional Revolving Credit Commitment Amendment and any related documentation may, without the consent of any Lenders (other than Additional Revolving Credit Lenders that are party to such Additional Revolving Credit Commitment Amendment), effect such amendments to this Agreement and the parties hereto hereby agrees that the Administrative Agent may take any and all action other Loan Documents as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans)necessary, when originally made, are included in each Borrowing the opinion of the applicable Class Administrative Agent, to effect the provisions of outstanding Term Loans this Section 2.18. Any Additional Revolving Credit Advances made pursuant to which such Incremental Term Loan relate on a pro rata basis, and this Section 2.18 shall be evidenced by one or more entries in the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required Register maintained by the Administrative Agent to effect in accordance with the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments provisions set forth in Section 2.13(b9.07(d).
(d) required This Section 2.18 shall supersede any provisions in Section 9.01 to the contrary. Notwithstanding any other provision of any Loan Document, the Loan Documents may be made after the making of such Incremental Term Loans shall be ratably increased amended by the aggregate principal amount of such Incremental Term Loans of Administrative Agent and the same ClassLoan Parties, if necessary, to provide for terms applicable to each Additional Revolving Credit Commitment.
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Increase in Commitments. Borrower Agent may request an increase in the Commitments from time to time upon notice to Agent (a “Revolver Commitment Increase”) as long as (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, requested Revolver Commitment Increase is in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in 25,000,000 and is offered on the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments same terms as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan existing U.S. Revolver Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such noticeCanadian Revolver Commitments, unless otherwise as applicable, except for any upfront fees agreed to by the Administrative Borrower Agent in its reasonable discretion)and the Persons providing the Revolver Commitment Increase, (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower the Revolver Commitment Increases under this Section do not exceed $75,000,000 in the aggregate and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that three (3) Revolver Commitment Increases are Eurocurrency Loans made in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)aggregate, then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made no reduction in Commitments pursuant to Section 2.1.4 has occurred prior to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien prioritiesrequested Revolver Commitment Increase, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment no Default or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time date of the definitive agreement request of the Revolver Commitment Increase and both immediately before and after giving effect thereto, (e) the Revolver Commitment Increase will be allocated between the U.S. Revolver Commitments and the Canadian Revolver Commitments as designated by the Borrower Agent and the Persons providing the Revolver Commitment Increase, subject to the consent of Agent, not to be unreasonably withheld or delayed, (f) the Borrower Agent shall deliver or cause to be delivered any officers’ certificates, board resolutions, legal opinions or other documents reasonably requested by Agent in respect connection with the Revolver Commitment Increase, (g) the Borrower(s) within the applicable Borrower Group shall pay all of Limited Condition Acquisition is entered into. If applicableAgent’s out-of-pocket costs and expenses in connection with the Revolver Commitment Increase, any payments required pursuant to Section 3.9 in connection with the Administrative Revolver Commitment Increase and any upfront fees agreed to by the Borrower Agent and the Persons providing the Revolver Commitment Increase and (h) Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each certification from a Financial Officer of the parties hereto hereby agrees Borrower Agent, or other evidence reasonably satisfactory to Agent, that such increase is permitted under the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, Credit Agreement and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, Intercreditor Agreement (except to the extent the Indebtedness under the Term Loan Credit Agreement has been discharged in full) and does not cause the aggregate Commitments to exceed 90% of any Incremental Term Loans are applicable cap thereunder. Agent shall promptly notify the Applicable Lenders of the requested Revolver Commitment Increase and, within 10 Business Days, thereafter, each Applicable Lender shall notify Agent if and to what extent such Applicable Lender commits to increase its Commitment. Any Applicable Lender not Other Term Loansresponding within such period shall be deemed to have declined an increase. If the Applicable Lenders fail to commit to the full requested Revolver Commitment Increase, Eligible Assignees may issue additional Commitments and become U.S. Lenders or Canadian Lenders, as applicable, hereunder. Agent may allocate, with consent of Borrower Agent (not to be unreasonably withheld), the scheduled amortization payments increased Commitments among committing Applicable Lenders and, if necessary, Eligible Assignees. Provided the conditions set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans 6.2 are satisfied, total applicable Commitments shall be ratably increased by the aggregate principal requested amount (or such lesser amount committed by Applicable Lenders and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, but no later than 45 days following Borrower Agent’s Revolver Commitment Increase request. Agent, Borrower Agent, Borrower(s) within the applicable Borrower Group, and new and existing Applicable Lenders shall execute and deliver such documents and agreements as Agent deems reasonably appropriate to evidence the Revolver Commitment Increase in and allocations of the applicable Commitments. On the effective date of an increase, the applicable Revolver Usage and other exposures under the applicable Commitments shall be reallocated among Applicable Lenders, and settled by Agent if necessary, in accordance with Applicable Lenders’ adjusted shares of such Incremental Term Loans of the same ClassCommitments.
Appears in 1 contract
Sources: Loan, Security and Guaranty Agreement (Willbros Group, Inc.\NEW\)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any from time after the Closing Dateto time, request on one or more occasions Incremental Term Loan Commitments and/or and Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) amounts not to exceed the Incremental Facility Maximum Term Loan Amount or the Incremental Revolving Credit Amount, as applicable, from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion); provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of the Agent (i) the Administrative Agent in its reasonable discretion (such consent which approval shall not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in 5,000,000 or equal to the case of remaining Incremental Term Loan Commitments denominated in EuroAmount or Incremental Revolving Credit Amount, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agreeapplicable), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days 10 Business Days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), ) and (iii) (x) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Loan Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (ivy) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Credit Commitments and based on or commitments to make revolving loans with terms different from the terms and conditions set forth herein for Revolving Commitments and Loans (“Other Revolving Loans”).
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Incremental Revolving Credit Extension Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension Amendment Assumption Agreement shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; providedprovided that, that without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date, Date and the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Credit Maturity Date and (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with provided further that, if the interest rate margin in respect to of any Other Term Loans made within Loan would exceed the first twelve (12) months after Applicable Rate for the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points ½ of 1%, the Initial Yield of Applicable Rate for the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by so that the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity rate margin in respect of such Other Term Loans and (B) fourLoan is no more than ½ of 1% higher than the Applicable Rate for the Term Loans. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Incremental Term Loan Assumption Agreement and Incremental Revolving Credit Extension AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Incremental Term Loan Assumption Agreement or Incremental Revolving Credit Extension AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring thereby as provided for in Section 9.02. Any such deemed amendment may be memorialized in writing by the Agent with the Borrower’s consent of any (not to be unreasonably withheld) and furnished to the other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitmentsparties hereto.
(c) All Incremental Term Loans made to Notwithstanding the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien prioritiesforegoing, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 2.24 unless (i) on the date of such effectiveness, the Administrative conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Agent shall have received a certificate certifying to that effect dated such date and executed by a Financial Officer of the conditions Borrower, (ii) the Agent shall have received legal opinions, board resolutions and other closing certificates and documentation consistent with those delivered on the Closing Date and (iii) unless the Required Revolving Lenders have agreed otherwise, the Borrower would be in Pro Forma Compliance with the covenant set forth in Section 4.02(iii6.14(a) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to and the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment Loans to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations therefrom as if made and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loanapplied on such date.
(fd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 2.14 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are LIBOR Rate Term Loans to Base Rate ABR Term Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 1 contract
Sources: Credit Agreement (Transdigm Inc)
Increase in Commitments. Borrowers may request an increase in Commitments from time to time upon not less than thirty (30) days’ (or such shorter period as may be acceptable to Agent) notice to Agent, as long as (a) The the requested increase is in a minimum amount of $20,000,000 and is offered on the same terms as existing Commitments, (xb) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or total increases under this Section do not exceed $120,000,000 and no more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments than three (3) increases are made and (yc) the EMEA Borrower may, any other fees or expenses required to be paid by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, Borrowers in an aggregate principal amount (together connection with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which increase shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice mutually agreed. Agent shall promptly notify Lenders of the requested increase and, within five ten (510) Business DaysDays thereafter, each Lender shall notify Agent if and to what extent such Lender commits to increase its Commitment. Any Lender not responding within such period shall be deemed to have declined an increase. If L▇▇▇▇▇▇ fail to participate therein) commit to the full requested increase, Eligible Assignees may issue additional Commitments and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicablehereunder. Agent may allocate, in connection therewith; providedits discretion, further that each Incremental Term Lender and Incremental Revolving Credit Lenderthe increased Commitments among committing Lenders and, if not already a Lender hereundernecessary, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Eligible Assignees. Total Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the requested amount any “LIBOR floor” (or “EURIBOR floor”such lesser amount committed by L▇▇▇▇▇▇ and Eligible Assignees) on a date agreed upon by Agent and Borrower Agent, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses provided (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii6.2 are satisfied at such time; and (ii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) Collateral includes any Real Estate, flood insurance diligence and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall documentation have been true and correct completed as required by all Flood Laws or otherwise in a manner satisfactory to all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”Lenders. Agent, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basisBorrowers, and the U.S. Borrower agrees that Section 3.02 new and existing Lenders shall apply execute and deliver such documents and agreements as Agent reasonably deems appropriate to any conversion evidence the increase in and allocations of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by Commitments. On the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loanseffective date of an increase, the scheduled amortization payments set forth in Section 2.13(b) required to be made after Revolver Usage and other exposures under the making of such Incremental Term Loans Commitments shall be ratably increased reallocated among Lenders, and settled by the aggregate principal amount Agent as necessary, in accordance with Lenders’ adjusted shares of such Incremental Term Loans of the same ClassCommitments.”
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Inari Medical, Inc.)
Increase in Commitments. Borrower may request an increase in Commitments from time to time upon notice to Administrative Agent, as long as (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after requested increase is in a minimum amount of $5,000,000 and is offered on the Closing Date, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan same terms as existing Commitments, in an aggregate principal amount except for a closing fee specified by Borrower, (together with all Incremental Equivalent Debt outstanding at such timeb) total increases under this Section do not to exceed the Incremental Facility Maximum Amount from one or $150,000,000 and no more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within than five (5) increases are made, and (c) the requested increase does not cause the Commitments to exceed 90% of any applicable cap under any Subordinated Debt agreement. SECOND AMENDED AND RESTATED ABL CREDIT AGREEMENT Administrative Agent shall promptly notify Lenders of the requested increase and, within 10 Business DaysDays thereafter, each Lender shall notify Administrative Agent if and to what extent such Lender commits to increase its Commitment. Any Lender not responding within such period shall be deemed to have declined an increase. If Lenders fail to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject commit to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheldfull requested increase, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be Eligible Assignees reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower may issue additional Commitments and the become Lenders hereunder. Administrative Agent shall reasonably agree)may allocate, (ii) with Borrower’s consent, the date on which such Incremental Term Loan increased Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Dateamong committing Lenders and, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred necessary, Eligible Assignees reasonably acceptable to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”)Borrower. As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that Provided the conditions set forth in Section 4.02(iii) 4.02 are satisfied, total Commitments shall be satisfied immediately after giving effect to increased by the requested amount (or such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisitionlesser amount committed by Lenders and Eligible Assignees) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis date agreed upon by Administrative Agent and Borrower, but no later than 45 days following Borrower’s increase request. Administrative Agent, Borrower, and new and existing Lenders shall execute and deliver such documents and agreements as Administrative Agent and (including solely with respect to any Permitted Acquisition or permitted Investment documents and agreements to be made executed by Borrower) Borrower deems appropriate to evidence the increase in whole or in part, with and allocations of Commitments. On the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution date of an Additional Credit Extension Amendment or (y) upon increase, the making of any Revolving Loans thereunder) and other Exposures under the Commitments shall be reallocated among Lenders, and settled by Administrative Agent as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitmentnecessary, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect accordance with Lenders’ adjusted shares of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loancommitments.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 1 contract
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any from time to time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount $100,000,000 from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, (which may include any existing Lender (each of which shall be entitled Lender) willing to agree or decline to participate in its sole discretion; provided that if any provide such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Loans or Revolving Credit LendersCommitment Increases, as applicable, in connection therewiththeir own discretion; provided, further provided that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender, an Affiliate of such a Lender hereunderor a Related Fund, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent which approval shall not to be unreasonably withheld); provided, conditioned or delayed)further, to that the extent the Administrative Agent would be required to consent to the assignment aggregate amount of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this AgreementCommitment Increases shall not exceed $15,000,000. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental $1,000,000 for Revolving Credit Commitments denominated in Dollars, Increases and $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree5,000,000 otherwise), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), “Increased Amount Date”) and (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA (x) Incremental Term CommitmentsLoan Commitments to make Additional Term Loans, Closing Date U.S. (y) Incremental Term Loan Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”), or (z) and (iv) increases in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be (“Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving LoansCommitment Increases”).
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify Incremental Assumption Agreement to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans or Incremental Revolving LoansCommitment Increases, as applicable, to be made thereunder; provided, that provided that:
(i) the Incremental Facilities shall rank pari passu in right of payment and of security with the Credit Facilities;
(ii) the final maturity date of any Other Term Loans shall be no earlier than the Latest Term Loan Maturity Date and no later than the six months following the Term Loan Maturity Date, ;
(iiiii) Revolving Commitment Increases shall be on the same terms as the Revolving Credit Commitments;
(iv) the weighted average life Weighted Average Life to maturity Maturity of any Other proposed Incremental Term Loans shall be no shorter than the weighted average life then-remaining Weighted Average Life to maturity Maturity of the Closing Date Term Loans and Loan Facility (without giving effect to such Incremental Term Loans);
(v) the Applicable Margins (which for the purposes of this Section 2.25 being occurred to include any outstanding similar interest margin measure) for any proposed Incremental Term Loans and (iii) with respect to any whether Additional Term Loans or Other Term Loans made within Loans) shall be determined by Borrower and the first twelve (12) months after applicable Incremental Lenders; provided that in the Closing Date, if event that the Initial Yield on such Other Applicable Margins for any proposed Incremental Term Loans exceeds by more are greater than 50 basis points the Initial Yield of Applicable Margins for the Term Loans that are Eurocurrency Loans in the same currency as (other than such Other Incremental Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”Loans), then the Applicable Margin then in effect Margins for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause other than such Incremental Term Loans) shall be increased to the extent necessary so that the Applicable Margins for the Term Loans (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be other than such Incremental Term Loans) are equal to the sum of (x) Applicable Margins for the margin above proposed Incremental Term Loans; provided, further, that in determining the Adjusted Eurocurrency Rate on such Applicable Margins applicable to the Term Loans (other than such Incremental Term Loans) and the proposed Incremental Term Loans, original issue discount (“OID”) or upfront fees (which shall be increased by deemed to constitute like amounts of OID) payable to all of the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Lenders of the Term Loans (other than such Incremental Term Loans) or the proposed Incremental Term Loans in the primary syndication thereof (or, in the case of the Term Loans borrowed on the date such Term Loans are made exceeds Closing Date, on the Adjusted Eurocurrency RateClosing Date) plus shall be included (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is with OID being equated to interest based on an assumed four (4) four-year life to maturity);
(vi) the Borrower shall have delivered a Pro Forma Compliance Certificate to the Administrative Agent demonstrating that, but excluding after giving effect on a Pro Forma Basis to the borrowings to be made on the Increased Amount Date and to any arrangement, underwriting, structuring or similar fees) directly or indirectly change in Consolidated EBITDA and any increase in Indebtedness resulting from the Applicable consummation of any Permitted Business Acquisitions or Asset Sales occurring after the beginning of the relevant Calculation Period but prior to or concurrently with such borrowings and the use of proceeds therefrom, as of the last day of the most recent Calculation Period, (x) the Borrower or is in compliance with each Financial Condition Covenant for the Calculation Period then last ended (and if the last date of any Subsidiarysuch Calculation Period is prior to the first Test Date, the amount of levels for such upfront fee or similar divided by first Test Date for the lesser of Financial Condition Covenants under Section 7.1 shall be deemed to apply for this purpose) and (Ay) the average life Consolidated Senior Secured Debt Ratio for the Calculation Period then last ended is not greater than 3.50 to maturity 1.00; and
(vii) if any covenant, event of default or remedy in any Other Term Loans are more favorable to the lenders thereunder than the corresponding covenant, event of default or remedy in the existing Credit Facilities, or such Other Term Loans contain any covenant, event of default or remedy that is not in the existing Credit Facilities, the Loan Parties and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and and/or the Incremental Collateral Agent shall, without the consent of or notice to any other party, amend the documentation for such existing Credit Facilities so such corresponding covenant, event of default and/or remedy is the same as the one in the such Other Term Lenders and reasonably satisfactory Loans and/or to incorporate any such covenant, event of default and/or remedy that is not in the Administrative Agentexisting Credit Facilities. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension AmendmentIncremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension AmendmentIncremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitmentsevidenced thereby as provided for in Section 10.1. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) All Notwithstanding the foregoing, no Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment Commitments shall become effective under this Section 2.17 2.25 unless on the date of such effectiveness, the conditions set forth in paragraph (b) of Section 5.2 shall be satisfied and the Administrative Agent shall have received a certificate certifying to that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to dated such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate date and executed by a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) financial officer of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated)Borrower.
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(fd) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 2.21 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Eurodollar Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 1 contract
Sources: Credit Agreement (Local Insight Yellow Pages, Inc.)
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to After the Administrative Agent at any time after the Closing Effective Date, request on one or more occasions the Borrowers shall have the right to increase the aggregate Revolving Commitments by obtaining additional Revolving Commitments (“Incremental Revolving Commitments”) and the right to increase the aggregate Term Loan Commitments and/or Incremental Revolving Credit by obtaining additional Term Loan Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions “Incremental Term Loan Commitments”), in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount each case from either from one or more of the Lenders or an additional Eligible Incremental Lender; provided that (A) any such Incremental Commitment shall be in a minimum amount of $25,000,000, (B) the aggregate amount of all Incremental Commitments effected pursuant hereto shall not exceed $1,000,000,000; (C) any such new Term Lender shall have assumed all of the rights and obligations of a “Term Lender” hereunder; (D) any such new Revolving Lender shall have assumed all of the rights and obligations of a “Revolving Lender” hereunder; (E) any such Incremental Revolving Commitments shall, subject to Section 2.10(e), be on the same terms as the other Revolving Commitments and any such Incremental Term Commitments shall, subject to Section 2.10(e), be on the same terms as the other Term Loans; and (F) all of the procedures and other conditions described in this Section 2.10 shall have been satisfied.
(b) The Borrower Representative shall request an Incremental Commitment by delivering a notice (an “Incremental Commitment Request”) to the Administrative Agent, who shall promptly notify the Lenders or of the substance thereof. The notice by the Administrative Agent to the Lenders describing each Incremental Revolving Credit LendersCommitment Request shall specify the time period (to be determined by the Borrower Representative in consultation with the Administrative Agent, as applicable, but in no event be less than 15 Business Days from the date of delivery by the Borrower Representative of the applicable Incremental Commitment Request to the Administrative Agent) within which may include any existing each Lender (each of which shall be entitled is required to agree or decline inform the Borrower Representative and the Administrative Agent whether such Lender intends to participate in its sole discretion; provided that the applicable Incremental Commitment. Each Lender shall notify the Administrative Agent within the required time period whether or not it agrees to participate in the applicable Incremental Commitment and, if any so, shall specify the amount of such existing Incremental Commitment it desires to be allocated to it. Any Lender does not respond to responding within such written notice within five (5) Business Days, such Lender time period shall be deemed to have declined to increase its Commitment. Each determination by a Lender to participate thereinin an Incremental Commitment shall be made by it in its sole and absolute discretion.
(c) The Administrative Agent shall notify the Borrower Representative and each Lender of the Lenders’ responses to each Incremental Commitment Request. The Borrowers may obtain the agreement of additional banksEligible Incremental Lenders to become Lenders pursuant to an Incremental Commitment Joinder Agreement, financial institutions and other institutional lenders who will become in substantially the form of Exhibit D (each, an “Incremental Term Lenders and/or Commitment Joinder Agreement”). Each such Eligible Incremental Revolving Credit LendersLender shall, as applicablea condition to participating in any Incremental Commitment, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lenderbe required to deliver all forms, if not already a any, that are required to be delivered by such Eligible Incremental Lender hereunder, shall be subject pursuant to the approval of (i) Section 9.04 and any other information that the Administrative Agent in its reasonable discretion (such consent not requires from Lenders as a condition to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant becoming a party to this Agreement. Such notice Any Incremental Commitment shall set forth be allocated among the existing Lenders that agree to participate in such Incremental Commitment and additional Eligible Incremental Lenders who agree to become Lenders pursuant to an Incremental Commitment Joinder Agreement (in each case, up to the amount of each such Person’s agreed participation) as agreed by the Borrower Representative and the Administrative Agent.
(d) Any amendment hereto solely for Incremental Commitments shall be in form and substance satisfactory to the Administrative Agent and shall only require the written signatures of the Administrative Agent, the Borrower Representative (on behalf of the Borrowers) and the Lender(s) providing an Incremental Commitment. As a condition precedent to any such Incremental Commitment, the Borrowers shall deliver to the Administrative Agent (i) a certificate of each Loan Party (in sufficient copies for each Lender) signed by an authorized officer of such Loan Party (x) certifying and attaching the amount of the Incremental Term resolutions adopted by such Loan Commitments Party approving or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable consenting to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) Commitment; and (ivy) in the case of Other Term Loansthe Borrowers, whether certifying that, before and immediately after giving effect to such Other Term Loans are increase, (A) the representations and warranties contained in Article III and the other Loan Documents shall be true and correct, except that such representations and warranties that relate solely to an earlier date shall be EMEA Facility Obligations true and correct in all material respects as of such earlier date; (B) no Default or U.S. Obligations. Notwithstanding anything contained herein Event of Default shall have occurred and be continuing or would result from any such Incremental Commitment; and (C) at the time of and immediately after giving effect to each such Incremental Commitment, the contraryBorrowers shall be in compliance with the covenant set forth in Section 6.13 (on a Pro Forma Basis for the Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b) ending immediately preceding such Incremental Commitment), it is acknowledged which compliance shall be evidenced by the due completion, execution and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments delivery of a Compliance Certificate and based on the terms assumption that such Incremental Commitment was fully drawn on the first day of such Test Period, and conditions set forth herein for Revolving Commitments and Revolving Loans.
(bii) The Applicable Borrower and each Incremental Term Lender shall execute and deliver such opinions of counsel, evidence of flood insurance, ratification agreements, amendments to the other Loan Documents (which amendments the Administrative Agent an Additional Credit Extension Amendment is authorized to execute on behalf of all Lenders), and such other documentation documents, certificates and information as the Administrative Agent may reasonably request; provided that flood insurance due diligence and flood insurance compliance shall be reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver satisfactory to the Administrative Agent an Additional Credit Extension Amendment Lenders.
(e) The terms and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms provisions of the Loans made with respect to any Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that Commitments shall (i) rank pari passu in right of payment and of security with, and shall have the final same guarantees as the existing Loans; (ii) have a maturity date of any Other Term Loans shall be no that is not earlier than the Latest Maturity Date, Date of the Term Loan; (iiiii) the have a weighted average life to maturity of any Other Term Loans shall be that is no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Loans; (iv) have a rate of interest as set forth in each applicable Incremental Term Loans and (iii) with respect to any Other Term Loans made within Commitment Joinder Agreement; provided that if such interest rate is greater than the first twelve (12) months after the Closing Date, if the Initial Yield interest rate on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii)Loan, the “MFN Protection”). As used in interest rate on the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term existing Loans (which shall be increased by so as to equal the amount interest rate applicable to the incremental Loans comprising such Incremental Commitment; and (v) otherwise be treated the same as, and not be entitled to any “LIBOR floor” additional benefits than or “EURIBOR floor”impose any more obligations than, the Term Loan or Revolving Loans, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each Any existing Lender that has a Note and participates in any Incremental Commitment shall, substantially contemporaneously with the delivery of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may its Note to be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, replaced to the extent any Incremental Term Loans are not Other Term LoansBorrowers, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by receive a replacement Note that evidences the aggregate principal amount of its Loans outstanding hereunder. Any new Lender requesting a Note shall receive such a Note in an amount equal to the aggregate principal amount of the Incremental Commitments for which its funds pursuant to the terms of this Section.
(g) Within a reasonable time after the effective date of any Incremental Commitment, the Administrative Agent shall, and is hereby authorized and directed to, revise the Commitment Schedule to reflect any Incremental Commitment and shall distribute such revised Commitment Schedule to each of the Lenders and the Borrowers, whereupon such revised Commitment Schedule shall replace the prior Commitment Schedule and become part of this Agreement. On the Business Day following the effectiveness of any such Incremental Term Revolving Commitment, all outstanding Revolving Loans shall be reallocated among the Lenders (including any newly added Lenders) in accordance with the Lenders’ respective revised Applicable Percentages of the same ClassRevolving Commitments.
Appears in 1 contract
Increase in Commitments. (a) The (x) U.S. Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and (y) the EMEA Borrower may, by written notice to the Administrative Agent at any time after the Closing Date, request on one or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at such time) not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any such existing Lender does not respond to such written notice within five (5) Business Days, such Lender shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this Agreement. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the Administrative Agent shall reasonably agree), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) in the case of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving Loans.
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable Borrower, the Administrative Agent and the Incremental Term Lenders and reasonably satisfactory to the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate certifying that the conditions set forth in Section 4.02(iii) shall be satisfied immediately after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefrom, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided that to the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described in this clause (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.U.S.
Appears in 1 contract
Increase in Commitments. (a) The (x) U.S. Borrower mayProvided there exists no Default, by written upon notice to the Administrative Agent at any (which shall promptly notify the Lenders), the Borrower may from time after the Closing Dateto time, request on one or an increase in the Aggregate Commitments; provided that such increase(s) in the Aggregate Commitments hereunder, when combined with any increase(s) in the Aggregate Commitments (as such term is defined in the Three-Year Facility) requested by the Borrower pursuant to Section 2.14 of the Three-Year Facility, total no more occasions Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments and than $100,000,000 in the aggregate. At the time of sending such notice, the Borrower (yin consultation with the Administrative Agent) shall specify the EMEA Borrower may, by written time period within which each Lender is requested to respond (which shall in no event be less than five Business Days from the date of delivery of such notice to the Lenders). Each Lender shall notify the Administrative Agent at any within such time after the Closing Dateperiod whether or not it agrees to increase its Commitment and, request on one if so, whether by an amount equal to, greater than, or more occasions Incremental Term Loan Commitments, in an aggregate principal amount (together with all Incremental Equivalent Debt outstanding at less than its Pro Rata Share of such time) requested increase. Any Lender not to exceed the Incremental Facility Maximum Amount from one or more Incremental Term Lenders or Incremental Revolving Credit Lenders, as applicable, which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion; provided that if any responding within such existing Lender does not respond to such written notice within five (5) Business Days, such Lender time period shall be deemed to have declined to participate therein) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith; provided, further that each Incremental Term Lender and Incremental Revolving Credit Lender, if not already a Lender hereunder, shall be subject to the approval of (i) the Administrative Agent in increase its reasonable discretion (such consent not to be unreasonably withheld, conditioned or delayed), to the extent the Administrative Agent would be required to consent to the assignment of any Loans or Commitments to such Incremental Term Lender and Incremental Revolving Credit Lender pursuant to this Agreement and (ii) in connection with Incremental Revolving Credit Commitments only, each LC Issuer, to the extent such consent would have been required for assignments of any Revolving Loans or Revolving Commitments pursuant to this AgreementCommitment. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or the Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of, in the case of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments denominated in Dollars, $1,000,000 and a minimum amount of $10,000,000, in the case of Incremental Term Loan Commitments denominated in Euro, €1,000,000 and a minimum amount of €10,000,000 and in the case of Incremental Term Loan Commitments denominated in another currency (which currency shall be reasonably acceptable to the Administrative Agent), such minimum increments as the Applicable Borrower and the The Administrative Agent shall reasonably agree)notify the Borrower and each Lender of the Lenders' responses to each request made hereunder. To achieve the full amount of a requested increase, (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested Borrower may also invite additional Eligible Assignees to become effective (which shall not be less than 15 days nor more than 60 days after the date of such notice, unless otherwise agreed Lenders pursuant to by the Administrative Agent in its reasonable discretion), (iii) whether such Incremental Term Loan Commitments are to be Closing Date EMEA Term Commitments, Closing Date U.S. Term Commitments or commitments to make term loans with terms different from the Closing Date Term Loans (“Other Term Loans”) and (iv) a joinder agreement substantially in the case form of Other Term Loans, whether such Other Term Loans are to be EMEA Facility Obligations or U.S. Obligations. Notwithstanding anything contained herein to the contrary, it is acknowledged and agreed that all Incremental Revolving Credit Commitments are to be Revolving Commitments and based on the terms and conditions set forth herein for Revolving Commitments and Revolving LoansExhibit F (a "Joinder").
(b) The Applicable Borrower and each Incremental Term Lender shall execute and deliver to If the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. The U.S. Borrower and each Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Additional Credit Extension Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Additional Credit Extension Amendment shall specify the terms of the Incremental Term Loans or Incremental Revolving Loans, as applicable, to be made thereunder; provided, that (i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date, (ii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the weighted average life to maturity of the Closing Date Term Loans and any outstanding Incremental Term Loans and (iii) Aggregate Commitments are increased in accordance with respect to any Other Term Loans made within the first twelve (12) months after the Closing Date, if the Initial Yield on such Other Term Loans exceeds by more than 50 basis points the Initial Yield of the Term Loans that are Eurocurrency Loans in the same currency as such Other Term Loans (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for each such affected Type of Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans (this clause (iii), the “MFN Protection”). As used in the prior sentence, “Initial Yield” shall, as determined by the Administrative Agent, be equal to the sum of (x) the margin above the Adjusted Eurocurrency Rate on such Term Loans (which shall be increased by the amount any “LIBOR floor” or “EURIBOR floor”, as applicable, applicable to such Term Loans on the date such Term Loans are made exceeds the Adjusted Eurocurrency Rate) plus (y) if the Lenders making such Other Term Loans receive any upfront fee or similar fees (including original issue discount where the amount of such discount is equated to interest based on an assumed four (4) year life to maturity, but excluding any arrangement, underwriting, structuring or similar fees) directly or indirectly from the Applicable Borrower or any Subsidiary, the amount of such upfront fee or similar divided by the lesser of (A) the average life to maturity of such Other Term Loans and (B) four. The other terms of the Incremental Term Loans and the Additional Credit Extension Amendment to the extent not inconsistent with the terms specified in clauses (i), (ii) and (iii) above shall otherwise be as agreed among the Applicable BorrowerSection, the Administrative Agent and the Incremental Term Lenders Borrower shall determine within a reasonable period of time the effective date (the "Increase Effective Date") and reasonably satisfactory to the Administrative Agentfinal allocation of such increase. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Additional Credit Extension Amendment. Each Borrower and the Lenders of the parties hereto hereby agrees thatfinal allocation of such increase and the Increase Effective Date. As a condition precedent to such increase, upon the effectiveness of any Additional Credit Extension Amendment, this Agreement shall be amended to the extent necessary and appropriate to reflect the existence and terms of the Incremental Term Loan Commitment or Incremental Revolving Credit Commitment, as applicable, evidenced thereby, without requiring the consent of any other Lender, other than the Lenders providing such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(c) All Incremental Term Loans made to the U.S. Borrower shall rank pari passu deliver to any then outstanding Closing Date U.S. Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the U.S. Collateral and guaranteed by the U.S. Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the U.S. Collateral or guaranteed by a Subsidiary other than the U.S. Borrower Guarantors, so long as such assets are contemporaneously included as U.S. Collateral and such Subsidiary contemporaneously becomes a U.S. Borrower Guarantor. All Incremental Term Loans made to the EMEA Borrower shall rank pari passu to any then outstanding Closing Date EMEA Term Loans as to lien priorities, rights of payment and prepayment and voting and shall be secured only by the Collateral and guaranteed by the EMEA Borrower Guarantors; provided that such Incremental Term Loan may be secured by assets other than the Collateral or guaranteed by a Subsidiary other than the EMEA Borrower Guarantors, so long as such assets are contemporaneously included as Collateral and such Subsidiary contemporaneously becomes a EMEA Borrower Guarantor.
(d) No Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.17 unless on the date of such effectiveness, the Administrative Agent shall have received a certificate of the Borrower dated as of the Increase Effective Date (for further distribution to each Lender) signed by a Responsible Officer of the Borrower (i) certifying that and attaching the conditions set forth in Section 4.02(iiiresolutions adopted by the Borrower approving or consenting to such increase, and (ii) shall be satisfied immediately certifying that, before and after giving effect to such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment (but such certification shall not be required to the extent such Incremental Term Loan Commitment or Incremental Revolving Credit Commitment is being used to consummate a Limited Condition Acquisition) and that, if utilizing the amounts provided for in clause (B) of the definition of “Incremental Facility Maximum Amount,” the U.S. Borrower is in compliance on a Pro Forma Basis (including with respect to any Permitted Acquisition or permitted Investment to be made in whole or in part, with the proceeds of the relevant Incremental Term Loan (including any Incremental Term Loan Commitment becoming effective contemporaneously with any Incremental Revolving Credit Commitment)) with the Consolidated Net Secured Leverage Ratio required therein. Any additional conditions to the entry into or the making of any Loans pursuant to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, including the timing of any such conditions (as between being made (x) upon execution of an Additional Credit Extension Amendment or (y) upon the making of any Loans thereunder) shall be as agreed to between the Applicable Borrower and the Lenders providing such Incremental Term Loans and/or Incremental Revolving Loans (including the scope of any representations and warranties to be made at the time the transaction is consummated).
(e) Immediately after giving effect to any Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment, the borrowings thereunder and the application of proceeds therefromincrease, (A) no Event of Default shall have occurred and be continuing; provided that, to the extent any Incremental Term Loans shall be applied to consummate a Limited Condition Acquisition, then no Specified Event of Default shall exist and be continuing (1) at the time the definitive agreement in respect of such Limited Condition Acquisition is entered into and (2) at the time such Limited Condition Acquisition is consummated and (B) the representations and warranties contained herein in Article V and in the other Loan Documents shall be are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall be true and correct in all respects) on and as of such date to the same extent as though made on and as of that dateIncrease Effective Date, except to the extent that such representations and warranties specifically relate refer to an earlier date, in which case such representations and warranties shall have been they are true and correct in all material respects (except for those representations and warranties that are conditioned by “materiality” or “material adverse effect”, which shall have been true and correct in all respects) on and as of such earlier date; provided , and except that to for purposes of this Section 2.14, the extent that the proceeds of Loans under any Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are to be used to finance a Limited Condition Acquisition, then the accuracy of representations and warranties as described contained in this clause subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01, and (B) shall be required as of the time the definitive agreement in respect of Limited Condition Acquisition is entered into. If applicable, the Administrative Agent shall have received a Notice of Borrowing in respect of any Incremental Term Loans or Incremental Revolving Loans by the date and time required hereunder with respect to the applicable Type of Loan.
(f) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Term Loans to which such Incremental Term Loan relate on a pro rata basis, and the U.S. Borrower agrees that Section 3.02 shall apply to any conversion of Dollar denominated Eurocurrency Loans which are Term Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments set forth in Section 2.13(b) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans of the same Class.
Appears in 1 contract
Sources: 364 Day Amended and Restated Credit Agreement (Hillenbrand Industries Inc)