Incremental Commitments. (a) Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied. (b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender. (c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied: (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added; (ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and (iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto. (d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as: (i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and (ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 6 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any at the time of incurrence of Permitted Pari Passu Notesthe Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, Permitted Pari Passu Loans or Permitted Junior Debt pursuant as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans than on the provisions applicable to same terms as the existing Term 2016 Revolving Loans or as are otherwise reasonably satisfactory (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial 2016 Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) the commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B-1 Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental 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 and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B-1 Loans and/or 2016 Revolving Loans shall have the same terms as the Term B-1 Loans or 2016 Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B-1 Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B-1 Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 Loans;
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the 2016 Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the 2016 Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2016 Revolving Facility Maturity Date and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the 2016 Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to the Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not require exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2016 Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party; and
(x) any such Other Term Loans or Other Revolving Loans may include financial maintenance covenants in addition to, or more onerous than, the Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as (x) with respect to Other Revolving Loans, such Previously Absent Financial Maintenance Covenant shall automatically apply to the Revolving Facilities and (y) with respect to Other Term Loans, such Previously Absent Financial Maintenance Covenant shall automatically apply to the Facilities, in each case, without the consent of any other Lender)party hereto. Each party hereto hereby agrees that, with upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided therein for in Section 9.08(e). Any amendment to occur on this Agreement or any other Loan Document that is necessary to effect the date on which (w) a fully executed copy provisions of this Section 2.21 and any such Incremental Amendment collateral and other documentation shall have been delivered to the Administrative Agent, (x) all fees required to be paid deemed “Loan Documents” hereunder and may be memorialized in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, delayed or conditionedno Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to a given the extent required by the Administrative Agent, consistent with those delivered on the Closing Date pursuant to the First Incremental Assumption and Amendment Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including any prepayment premium, penalties or have such other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related terms as shall be reasonably satisfactory to the establishment and incurrence of such Incremental Term Loans.Administrative Agent a
Appears in 5 contracts
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), Amendment Agreement No. 8 (ADT Inc.)
Incremental Commitments. (a) Borrower The Company may at any time and from time to time request one or more notify the Administrative Agent that certain of the Lenders (or one or more Eligible Transferees who will become Lenders) designated by the Company and/or that additional lenders shall be added to provide an increase in Revolving this Agreement as Incremental Lenders with Commitments for the purpose of increasing the existing Commitments under the Facility (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase by executing and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject delivering to the terms Administrative Agent an Incremental Loan Activation Notice signed by such Lenders or such additional lenders and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that specifying (i) no Lender shall be obligated to provide an the respective Incremental Facility as a result Commitments of any such request by Borrower, Incremental Lenders and (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments))Commitment Increase Date; provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right (including the incurrence of payment any Incremental Loans on the applicable Commitment Increase Date and security with the Initial Revolving Loans, use of proceeds thereof) (x) no Default or Event of Default shall be continuing and (y) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche sum of the Additional/Replacement Revolving Total Commitments may have other terms that may differ from those then in effect (including, for the avoidance of other Tranches of Revolving doubt, Incremental Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfiedexceed $2 billion.
(b) At the time of the provision of Each Incremental Commitments pursuant Lender that is a signatory to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment Loan Activation Notice severally agrees, on the terms and conditions of this Agreement, to make revolving credit loans (each, an “Incremental LenderLoan”) shall execute and deliver to the Administrative Agent Company and/or the applicable Subsidiary Borrowers from time to time on or after the Commitment Increase Date specified in such Incremental Loan Activation Notice in an Incremental Amendment (which shall aggregate principal amount outstanding at any time up to but not require exceeding the consent of any other Lender), with the effectiveness amount of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered Lender specified in such Incremental Loan Activation Notice, subject to the Administrative Agent, (x) all fees required to be paid in connection therewith at terms of this Agreement and the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the applicable Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth Loan Activation Notice. Nothing in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 2.27 shall be deemed modified construed to reflect the revised obligate any Lender to execute an Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental LenderLoan Activation Notice.
(c) Notwithstanding anything to On any Commitment Increase Date, in the contrary contained above in this Section 2.15event any Loans under the Facility are then outstanding, the Incremental Term Loan Commitments provided by an (i) each relevant Incremental Lender or Incremental Lenders, as the case may be, pursuant shall make available to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not such amounts in immediately available funds as the Administrative Agent shall determine are necessary in order to cause, after giving effect to such increased Commitments and the application of such amounts to prepay Loans under the Facility of other relevant Lenders, the Loans under the Facility to be unreasonably withheld, delayed or conditioned), held ratably by all Lenders with Commitments in the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, Facility in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant accordance with such Commitments after giving effect to such Incremental Amendment shall have the same Borrowerincrease, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Company and any relevant Subsidiary Borrower shall be deemed to have prepaid and reborrowed all outstanding Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
under this Agreement and (iii) on the date of the making of such new Incremental Term Loans, Company and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans any relevant Subsidiary Borrower shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect pay to the relevant series of Term Loans and/or Commitments being extendedLenders the amounts, repriced or refinanced are offered the opportunity to participate in such transaction on if any, payable under Section 2.22 as a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence result of such Incremental Term Loansprepayment.
Appears in 5 contracts
Sources: 364 Day Revolving Credit Agreement (General Motors Co), 364 Day Revolving Credit Agreement (General Motors Financial Company, Inc.), 364 Day Revolving Credit Agreement (General Motors Financial Company, Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any at the time of incurrence of Permitted Pari Passu Notesthe Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, Permitted Pari Passu Loans or Permitted Junior Debt pursuant as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are requested to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) the commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) all fees required substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Other Term Loan incurred prior to the twelve month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(iviii) Schedule 2.01 (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed modified “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to reflect the revised Incremental Commitments of the affected Lenders be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, delayed or conditionedno Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred or be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to a given Incremental Amendment the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any prepayment premiumother terms that would affect the rights or duties of any Issuing Bank or Swingline Lender, penalties or other call protection) related such terms as shall be reasonably satisfactory to such extensionIssuing Bank or Swingline Lender, repricing (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or refinancing, and a less than pro rata basis (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.but not greater than a pro rata
Appears in 4 contracts
Sources: Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Incremental Commitments. (a) So long as the Incremental Commitment Request Requirements are satisfied at the time of the delivery of the request referred to below, the Borrower may shall have the right, in consultation and coordination with, Administrative Agent as to all of the matters set forth below in this Section 2.14, but without requiring the consent of any of the Lenders, to request at any time and from time to time request after the Initial Borrowing Date and prior to the date which is three months prior to the Revolving Loan Maturity Date, that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees who and which will become LendersLenders as provided below) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”)Incremental Commitments, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide an Incremental Commitment and executed and delivered to the Administrative Agent an Incremental Commitment Agreement in respect thereof as provided in clause (b) of this Section 2.14, such Lender shall not be obligated to fund any Revolving Loans or participate in Swingline Loans or Letters of Credit in excess of its Commitment as in effect prior to giving effect to such Incremental Commitment provided pursuant to this Section 2.14, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility Commitment without the consent of any other Lender, (iii) each provision of Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available Commitments on a given date pursuant to a given Incremental Amendment this Section 2.14 shall be in a minimum aggregate amount (for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lenderlender)) agreeing of at least $10,000,000 and in integral multiples of $5,000,000 in excess thereof, and (iv) the aggregate amount of all Incremental Commitments provided pursuant to provide an this Section 2.14 shall not exceed the Maximum Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfiedAmount.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.152.14, the Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender)Commitment Agreement, with the effectiveness of the such Incremental Lender’s Incremental Commitment provided therein to occur on the date set forth in such Incremental Commitment Agreement, which date in any event shall be no earlier than the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront up-front or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments(or any affiliate thereof)), (yx) all Incremental Commitment Requirements are satisfied, (y) all other conditions set forth in this Section 2.14 shall have been satisfied, and (z) all other conditions precedent that may be set forth in this Section 2.15 such Incremental Commitment Agreement shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental AmendmentCommitment Agreement, and at such time, (i) Schedule 2.01 the Total Commitment under, and for all purposes of, this Agreement shall be increased by the aggregate amount of such Incremental Commitments, (ii) Appendix A shall be deemed modified to reflect the revised Incremental Revolving Loan Commitments of the affected Lenders and (iiiii) to the extent requested by any Incremental Lender, Term Revolving Loan Notes or Revolving Notes, as applicable, will be issued issued, at the expense of the Borrower’s expense , to such Incremental Lender, to be Lender in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender2.05.
(c) Notwithstanding anything to At the contrary contained above in this Section 2.15, the time of any provision of Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided thatSection 2.14, the Borrower shall, in coordination with the consent Administrative Agent, repay outstanding Revolving Loans of certain of the Administrative Agent Lenders, and incur additional Revolving Loans from certain other Lenders (not to be unreasonably withheld, delayed or conditionedincluding the Incremental Lenders), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any each case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment extent necessary so that all of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates Lenders participate in each outstanding Borrowing borrowing of Term Revolving Loans pro rata on the basis of the their respective Tranche Revolving Loan Commitments (after giving effect to any increase in the incurrence of such new Incremental Term Loans Total Commitment pursuant to this Section 2.01(b)2.14) on a pro rata basis. To and with the extent Borrower being obligated to pay to the provisions respective Lenders any costs of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add type referred to in Section 2.10 in connection with any such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretorepayment and/or incurrence.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 4 contracts
Sources: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)
Incremental Commitments. (a) The Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) time, by written notice to provide an increase in Revolving Commitments the Credit Facility Agent (a “Revolving Working Capital Commitment Increase Notice”), request increases in the Working Capital Commitments (together with any applicable corresponding increases in the Issuing Bank Limits) of the relevant Working Capital Lender, Issuing Bank or by any other Person that is an Eligible Assignee or satisfies the rating requirement set forth in the definition of “Issuing Bank”, as applicable (each, a “Working Capital Commitment Increase”), one or more additional Tranches of Revolving Commitments (up to an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount not to exceed the maximum amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Working Capital Debt permitted pursuant to Section 10.04(xxvii)(16.2(a) on such date, (xWorking Capital Debt) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Common Terms Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At The Working Capital Commitment Increase Notice shall specify (i) the time date on which the Borrower proposes that such Working Capital Commitment Increase shall be effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to the Credit Facility Agent, (ii) the amounts of the provision Working Capital Commitment Increase (including any proposed increase in Non-Fronting Limit or Fronting Limit of Incremental Commitments pursuant to this Section 2.15an Issuing Bank) and (iii) the identity of each Working Capital Lender, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Person that is an Eligible Transferee which agrees to provide an Incremental Commitment Assignee or satisfies the rating requirement set forth in the definition of “Issuing Bank”, as applicable (each, an “Incremental Lender/Issuing Bank”) shall execute and deliver to whom the Administrative Agent an Incremental Amendment (which shall not require the consent of Borrower proposes any other Lender), with the effectiveness portion of the Incremental Working Capital Commitment provided therein to occur on Increase be allocated and the date on which (w) a fully executed copy amounts of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitationallocations; provided that, any agreed upon upfront Working Capital Lender, Issuing Bank or arrangement fees owing other Person approached to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) provide all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments or a portion of the affected Lenders Working Capital Commitment Increase may elect or decline, in its sole and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lenderabsolute discretion, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparticipate.
(c) Notwithstanding anything Each Working Capital Commitment Increase shall become Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) (or, in the case of an increase in the commitment of an existing Working Capital Lender or Issuing Bank, an increase in such Working Capital Lender’s or Issuing Bank’s applicable Working Capital Commitment, Issuing Bank Limit, Non-Fronting Limit or Fronting Limit (as applicable)) under this Agreement pursuant to an amendment (such amendment, an “Incremental Amendment”) to this Agreement executed by the contrary contained above in this Section 2.15Borrower, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to Credit Facility Agent and each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, Lender/Issuing Bank (with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
no other Working Capital Lender being required) which provides solely for (i) the increase in the applicable Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) proposed in the applicable Working Capital Commitment Increase Notice and consented to by the applicable Incremental Term Loans Lender/Issuing Bank, (ii) amendments required to be made pursuant reflect the relative unfunded Commitments of the Incremental Lenders/Issuing Banks and (iii) the joinder of each Incremental Lender/Issuing Bank that is not already an existing Working Capital Lender or Issuing Bank party to such this Agreement. The effectiveness of any Incremental Amendment shall have be subject solely to the same Borrowerconditions that (A) no Loan Facility Event of Default or Unmatured Loan Facility Event of Default shall exist on such date of effectiveness before or after giving effect to such Working Capital Commitment Increase, (B) each Incremental Lender that is not already a Working Capital Lender shall be entitled to receipt of any required reliance letters in respect of the same Maturity legal opinions provided to the Credit Facility Agent pursuant to Section 4.1(f) (Conditions to Closing Date and Initial Advance – Opinions from Counsel) of the same Applicable Margins as Common Terms Agreement, (C) since the Tranche time of Term Loans the financial statements most recently provided pursuant to which Section 10.1(a) (Accounting, Financial and Other Information) of the new Common Terms Agreement no developments have occurred which, individually or in the aggregate have resulted in or could reasonably be expected to result in a Material Adverse Effect, (D) each Incremental Term Loans are being added;
Lender/Issuing Bank who is not already a Working Capital Lender or Issuing Bank is reasonably acceptable to the Credit Facility Agent and each Issuing Bank and (iiE) the new Incremental Term Loans shall have Intercreditor Agent has received, at least three (3) Business Days before the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making effectiveness of such new Incremental Term LoansAmendment, and notwithstanding anything to a certificate from the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to Borrower that (and form part of1) identifies each Borrowing holder of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche Working Capital Commitments (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)applicable Working Capital Commitment Increase) on and (2) attaches a pro rata basis. To the extent the provisions copy of the preceding clause (iii) require that proposed Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoAmendment.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 3 contracts
Sources: Credit Facility Agreement (Venture Global, Inc.), Credit Facility Agreement (Venture Global, Inc.), Credit Facility Agreement (Venture Global, Inc.)
Incremental Commitments. (a) At any time following the Closing Date, the Borrower may at any time and from time to time by written notice to the Administrative Agent elect to request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in to the existing Revolving Facility Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (any such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectivelyincrease, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental FacilityTerm Facility Commitments” and collectivelytogether with the Incremental Revolving Facility Commitments, if any, the “Incremental FacilitiesCommitments”) to Borrower and), subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitmentamount, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e.collectively, not the same as any existing Tranche of Incremental Term Loansto exceed $350.0 million, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loansor, in each case, taken a lesser amount in integral multiples of $5.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall be made available, which shall be a date not less than 5 Business Days (or such lesser number of days as a whole, that are not materially more favorable may be agreed to by the Administrative Agent in its sole discretion) after the date on which such notice is delivered to the lenders providing such Incremental Term Loans than Administrative Agent. The Borrower shall notify the provisions applicable to Administrative Agent in writing of the existing Term Loans identity of each Revolving Facility Lender or as are otherwise other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably satisfactory acceptable to the Administrative Agent, (ix) and in the terms and provisions case of any Revolving Commitment Increase shall be identical Person committing to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interestFacility Commitment, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, consent would be required under Section 13.04(b) for with regard to an assignment of Loans to such Person) or other Eligible Transferee which agrees Person pursuant to provide an Incremental Commitment Section 9.04, reasonably acceptable to the Issuing Banks and the Swingline Lenders (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date, and in the case of Incremental Term Facility Commitments, such new Loans in respect thereof (“Incremental Term Loans”) shall execute be made on such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments and deliver Incremental Term Loans; (ii) [reserved]; (iii) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such Incremental Commitments (assuming the Revolving Facility Commitments, including any Incremental Revolving Facility Commitments, are fully drawn) and Incremental Term Loans, with the Financial Performance Covenants recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries; (iv) such increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Administrative Agent an and subject to the requirements set forth in Section 2.17(e); (v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Amendment Commitments; and (which vi) the Borrower and its Affiliates shall not require be permitted to commit to or participate in any Incremental Commitments or make any Incremental Term Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments without the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 3 contracts
Sources: Amendment (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or, solely in connection with clause (ii) of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as definition of the date term “Incremental Amount,” at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Loans thereunder) from one or more Incremental Term Loan Commitments being provided thereunder Lenders and/or Incremental Revolving Facility Lenders (which Tranche shall be a new Tranche (i.e., not the same as may include any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(cLender) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if willing to be incurred as a new Tranche of Incremental Term Loans, provide such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and and/or Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Facility Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to in their own discretion; provided that each Incremental Amendment shall constitute Revolving Facility Lender providing a new Tranche, which commitment to make revolving loans shall be separate and distinct from subject to the existing Tranches pursuant to this Agreement; provided that, with the consent approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks (which approvals shall not to be unreasonably withheld, delayed or conditioned), the parties to ) unless such Incremental Revolving Facility Lender is a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto Revolving Facility Lender. Such notice shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
set forth (i) the amount of the Incremental Term Loans Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to be made pursuant to the remaining Incremental Amount or, in each case, such Incremental Amendment shall have lesser amount approved by the same BorrowerAdministrative Agent), the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new date on which such Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect Loan Commitments and/or Incremental Revolving Facility Commitments are requested to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being addedbecome effective, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the date same terms as the Initial Revolving Facility Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Facility Loans (“Other Revolving Facility Loans”) and (iv) in the case of the making of such new Incremental Term LoansLoan Commitments, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add whether such Incremental Term Loans Loan Commitments are to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable commitments to make term loans with terms identical to Term B Loans effectively being extended, repriced or refinanced, (y) fees and expenses commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental “Other Term Loans”).
Appears in 3 contracts
Sources: First Lien Credit Agreement and Security Agreement (Exela Technologies, Inc.), First Amendment to First Lien Credit Agreement (Exela Technologies, Inc.), First Lien Credit Agreement (Exela Technologies, Inc.)
Incremental Commitments. (a) The Borrower may at or any time and Co-Borrower may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or, at the option of the incurrence thereof shall not exceedBorrower or such Co-Borrower, when taken together with any at the time of incurrence of Permitted Pari Passu Notesthe Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, Permitted Pari Passu Loans or Permitted Junior Debt pursuant as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans than on the provisions applicable to same terms as the existing Term 2021 Revolving Loans or as are otherwise reasonably satisfactory (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial 2021 Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) the commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B-1 Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, The Borrower, the Administrative Agent each applicable Co-Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental 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 and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B-1 Loans and/or 2021 Revolving Loans shall have the same terms as the Term B-1 Loans or 2021 Revolving Loans, respectively;
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B-1 Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below);
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B-1 Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 Loans;
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the 2021 Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the 2021 Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement);
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2021 Revolving Facility Maturity Date and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the 2021 Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to the Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not require exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2021 Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party; and
(x) any such Other Term Loans or Other Revolving Loans may include financial maintenance covenants in addition to, or more onerous than, the Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as (x) with respect to Other Revolving Loans, such Previously Absent Financial Maintenance Covenant shall automatically apply to the Revolving Facilities and (y) with respect to Other Term Loans, such Previously Absent Financial Maintenance Covenant shall automatically apply to the Facilities, in each case, without the consent of any other Lender)party hereto. Each party hereto hereby agrees that, with upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided therein for in Section 9.08(e). Any amendment to occur on this Agreement or any other Loan Document that is necessary to effect the date on which (w) a fully executed copy provisions of this Section 2.21 and any such Incremental Amendment collateral and other documentation shall have been delivered to the Administrative Agent, (x) all fees required to be paid deemed “Loan Documents” hereunder and may be memorialized in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, delayed or conditionedno Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to a given the extent required by the Administrative Agent, consistent with those delivered on the Closing Date pursuant to the First Incremental Assumption and Amendment Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term SOFR Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower, each applicable Co-Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.ha
Appears in 3 contracts
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)
Incremental Commitments. At any time following the earlier of (ax) completion of the syndication of the Revolving Loan Facility (as reasonably determined by the Administrative Agent) and (y) 90 days after the Closing Date and prior to the Revolving Facility Maturity Date, the Borrower may at any time and from time by written notice to time the Administrative Agent elect to request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in to the existing Revolving Facility Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (any such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectivelyincrease, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental FacilityTerm Facility Commitments” and collectivelytogether with the Incremental Revolving Facility Commitments, if any, the “Incremental FacilitiesCommitments”) to Borrower and), subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount amount, collectively, not to exceed the greater of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus U.S.$50.0 million and (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) U.S.$100.0 million if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); providedPro Forma Basis, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans or such Incremental Revolving Facility Commitments, the First Lien Leverage Ratio would not exceed 3.50 to 1.00, or, in each case, a lesser amount in integral multiples of U.S.$5.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall 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. The Borrower shall notify the Administrative Agent in writing of the identity of each Revolving Facility Lender or other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably acceptable to the Administrative Agent, and in the case of any Person committing to any Incremental Revolving Facility Commitment, reasonably acceptable to the Issuing Banks and the Swingline Lenders (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date, and in the case of Incremental Term Facility Commitments, such new Loans in respect thereof (“Incremental Term Loans”) shall be made on such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments and Incremental Term Loans; (ii) the representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date; (iii) the Borrower and its Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such Incremental Commitments and Incremental Term Loans, with the covenants contained in Section 6.10 and Section 6.11 recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Subsidiaries; (iv) such increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Administrative Agent and subject to the requirements set forth in Section 2.17(e); (v) the Borrower shall make any payments required pursuant to Section 2.01(b)) on a pro rata basis. To the extent 2.16 in connection with the provisions of the preceding clause Incremental Commitments; (iiivi) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche Borrower and which will end on the last day of such Interest Period), which irregular interest periods its Affiliates shall not be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant commit to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Commitments or make any Incremental Term Loans does not exceed and (vii) if the sum Applicable Margin for any Incremental Term Loan exceeds the then applicable Applicable Margin for the Revolving Facility by more than 50 basis points (the excess of (xA) such Applicable Margin for the Incremental Term Loans over (B) the principal amount Applicable Margin for the Revolving Facility plus 50 basis points being the relevant “Margin Differential”), then each Applicable Margin for the Revolving Facility for each adversely affected existing Revolving Facility Commitment shall automatically be increased by the Margin Differential effective upon the making of the applicable Incremental Term Loan. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments and the Incremental Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancingevidenced thereby, and (z) fees the Administrative Agent and expenses (including the Borrower may revise this Agreement to evidence such amendments without the consent of any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term LoansLender.
Appears in 3 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time request time, on one or more Lenders (or occasions, request Incremental Commitments in an additional aggregate principal amount not to exceed the Incremental Commitment Cap from one or more Eligible Transferees who will become LendersIncremental Lenders (which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion)) willing to provide an increase such Incremental Commitments, as the case may be, in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant theretotheir own discretion; it being understood and agreed, howeverprovided, that (i) no each Incremental Lender shall be obligated subject to provide the approval of the Administrative Agent (which approval shall not be unreasonably withheld, delayed or conditioned), the Swingline Lender (which approval shall not be unreasonably withheld, delayed or conditioned) and the Borrower (in its sole discretion) unless such Incremental Lender is an Incremental Facility as a result of any such request by Borrowerexisting Lender, and (ii) each Incremental Commitment shall be on the same terms as the existing Commitments (except with respect to any Lender (including any Eligible Transferee who will underwriting, upfront or similar fees that may be agreed to among the Borrower and the Incremental Lenders providing such Incremental Commitments) and in all respects shall become a Lender) may so provide an Incremental Facility without part of the Commitments hereunder on such terms; provided, that, with the consent of the Borrower, the Applicable Rate and Commitment Fee Rate applicable to the then existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any other Lender, Incremental Commitment to comply with this clause (iii) each Incremental Facility ii). Such notice shall be denominated in Dollars or an Alternative Currency, set forth (iv1) the amount of any the Incremental Facility made available pursuant to a given Incremental Amendment Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum aggregate amount for all Lenders which provide of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000Amount), (v2) the aggregate principal amount of any Loan or CommitmentIncremental Commitments, as applicablewhich shall not exceed the Incremental Amount, pursuant to an Incremental Facility on and (3) the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior Commitments are requested to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% become effective (the “MFN Pricing TestIncreased Amount Date”); and (III) such Tranche of Incremental Term Loans may . The Borrower shall have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as no obligation to offer any Lender the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable opportunity to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably participate in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Incremental Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require Assumption Agreement. Each of the consent of any other Lender), with parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of Commitments evidenced thereby. Any such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to deemed amendment may be paid memorialized in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to writing by the Administrative Agent with the Borrower’s written consent (not to be unreasonably withheld) and furnished to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparties hereto.
(c) Notwithstanding anything to the contrary contained above in foregoing, no Incremental Commitment shall become effective under this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
2.22 unless (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of such effectiveness, the making of such new Incremental Term Loans, and notwithstanding anything to the contrary conditions set forth in paragraphs (b) and (c) of Section 2.09, such new Incremental Term Loans 4.02 shall be added satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and form part ofother closing certificates and documentation to the extent reasonably required by the Administrative Agent, and such additional documents and filings as the Administrative Agent may reasonably require to assure that the Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Term Revolving Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 3 contracts
Sources: Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.)
Incremental Commitments. (a1) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one Incremental Term Loan Commitments and/or increases in the Revolving Commitments of any Class or more Lenders the establishment of a new Class of Extended Revolving Commitments, as applicable, in an aggregate amount (or excluding Refinancing Term Loans and any Extended Revolving Commitments that are established concurrently with the reduction in any then existing Class of Revolving Commitments) not to exceed $600,000,000 from one or more Eligible Transferees who will become Lenders) Assignees (which, in each case, may include any existing Lender (but no such Lender shall be required to provide an increase participate in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or any such Incremental Term Loan Commitments (or additional Revolving Commitment without its consent) and shall be subject to such Term Loans incurred consents, if any, as would be required in connection therewith, each, with an “Incremental assignment of a Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Revolving Commitment, as applicable, pursuant to an such Person) willing to provide such Incremental Facility on Term Loans and/or additional Revolving Commitments, as the date of the incurrence thereof case may be, in their sole discretion. Such notice shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, set forth (xi) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or additional Revolving Commitments being provided thereunder requested (which Tranche shall be in a new Tranche minimum amount of $25,000,000 and minimum increments of $10,000,000, or remaining permitted amount or, in each case, such lesser amount approved by the Administrative Agent), (i.e., not ii) (x) in the same as any existing Tranche case of Incremental Term LoansLoan Commitments, whether the Incremental Term Loans to be borrowed pursuant to such Incremental Term Loan Commitments are to be an increase in any existing Class of Term Loans or other a new Class of Term Loans)Loans and (y) in the case of any additional Revolving Commitments, whether such Revolving Commitments are to be an increase in any existing Class of Revolving Commitments or a new Class of Extended Revolving Commitments and (iii) the date on which such Incremental Term Loan Commitments and/or increased Revolving Commitments are requested to become effective (which shall, unless otherwise agreed by the requirements Administrative Agent, be not less than ten Business Days after the date such notice is delivered).
(2) The Loan Parties, the Administrative Agent and any other Person whose consent is required as provided above 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 or additional Revolving Commitments. Each Additional Credit Extension Amendment pursuant to this clause (d) shall specify the terms of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans and/or additional Revolving Commitments; provided that:
(i) any additional Revolving Commitments shall have the same terms as each other Tranche of the then existing Revolving Commitments (except for upfront and arrangement fees and except that any Extended Revolving Commitments may have different terms to the extent permitted by subclause (vi) below);
(ii) the Incremental Term Loans as in effect immediately prior to the effectiveness shall not be guaranteed by any Subsidiaries of the relevant Incremental Amendment, except as to purpose Borrower that do not guarantee the existing Loans and shall be secured on a pari passu basis by the same Collateral (which is subject to and no additional collateral) securing the requirements then existing Obligations;
(iii) the Maturity Date of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of any Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans then Latest Maturity Date as of the date such Indebtedness was incurred and (b) a the Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding any Incremental Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may shall be no shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Class of Term Loans, ;
(IIiv) no Incremental Term Loan shall participate on a greater than pro rata basis with the Effective Yield applicable to such Tranche of then outstanding Term Loans in any mandatory prepayment;
(v) Incremental Term Loans shall have such interest rates, optional prepayment provisions and fees as may differ from be agreed between the Lenders providing the applicable Incremental Term Loan Commitments and the Borrower (except that any Incremental Term Loans forming an addition to an existing Class of Term Loans shall have the same interest rates, optional prepayment provisions and fees (other than upfront fees) as the applicable to the then outstanding Tranches existing Class of Term Loans);
(vi) subject to the above, with the Effective Yield applicable thereto any Incremental Term Loans and Extended Revolving Commitments shall be on terms and pursuant to documentation to be specified in determined by the respective Borrower and the Lenders providing such Incremental AmendmentTerm Loan; provided, however, provided that, solely with respect the terms applicable to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds or Extended Revolving Commitments (except as expressly permitted above and except for covenants or other provisions applicable only to periods after the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”Latest Maturity Date) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each caseare not, taken as a whole, that are not materially more favorable restrictive to the lenders providing such Incremental Term Loans Borrower and its Restricted Subsidiaries, than the provisions terms applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms then outstanding Commitments and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured determined by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, Borrower (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) except to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment that this Agreement is amended (which shall not require the consent of any other Lender), with ) to incorporate such more restrictive provisions for the effectiveness benefit of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental then existing Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iiivii) subject to Section 1.10, no Incremental Term Loan Commitment or additional Revolving Commitment shall become effective under this Section 2.01(d) unless (w) no Default or Event of Default shall exist giving pro forma effect to such Incremental Term Loan Commitment or Revolving Commitment and the incurrence of Indebtedness thereunder and use of proceeds therefrom; (x) the conditions set forth in clauses (a) and (b) of Section 5.02 are satisfied whether or not a Credit Extension is made on such date (and, only to the extent a Borrowing is made on such date clause (c) is required to be complied with); (y) on a Pro Forma Basis, giving effect to such Incremental Term Loans or additional Revolving Commitments and the date incurrence of Indebtedness thereunder (assuming, in the making case of Incremental Term Loan Commitments, that such new Incremental commitments are fully drawn on such date) and use of proceeds therefrom, the Borrower would be in compliance with Section 8.11 and (iv) the Administrative Agent shall have received documents and legal opinions as to such matters as are reasonably requested by the Administrative Agent. Upon any increase of any existing Class of Revolving Commitments or Term Loans, and notwithstanding anything the Lenders shall take any action as may be reasonably required by the Administrative Agent to ensure that the contrary set forth in Section 2.09, Borrowings of such new Incremental Term Loans shall be added to (and form part of) each Borrowing Class are held by the Lenders of outstanding Term Loans of the applicable Tranche such Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under in accordance with the respective Tranche amount of Term Loans participates in each outstanding Borrowing of Revolving Commitments or Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations Class held by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoeach Lender.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 3 contracts
Sources: Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.), Credit Agreement (Lamb Weston Holdings, Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, after the Closing Date, by written notice to the Administrative Agent from time to time, request Incremental Revolving Commitments in an amount not to exceed the Incremental Amount at the time request such Incremental Revolving Commitments are established from one or more Incremental Revolving Lenders (or one or more Eligible Transferees who will become Lenderswhich may include any existing Lender) willing to provide an increase in such Incremental Revolving Commitments in their own discretion; provided, that each Incremental Revolving Lender shall be subject to the approval of the Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) the amount of the Incremental Revolving Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount) and (ii) the date on which such Incremental Revolving Commitments are requested to become effective (the “Revolving Commitment IncreaseIncreased Amount Date”), one or more additional Tranches of . All Incremental Revolving Commitments (an “Additional/Replacement shall be commitments to make additional Revolving Commitment”) or Incremental Term Loan Commitments Loans (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectivelyadditional Revolving Loans, the “Incremental Term Revolving Facility Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be having the same guarantees as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank ranking pari passu in right of payment and of security with with), and forming a single Class with, the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under pursuant to the Additional/Replacement Commitments in effect on the Closing Date (the “Initial Revolving Commitments shall have Facility Loans”) or a maturity date then existing Class of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Extended Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Revolving Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require reasonably specify to evidence the consent Incremental Revolving Commitment of any other such Incremental Revolving Lender). Each party hereto hereby agrees that, with upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the Incremental Commitment Revolving Commitments evidenced thereby as provided therein for in Section 9.08(e). Any amendment to occur on this Agreement or any other Loan Document that is necessary to effect the date on which (w) a fully executed copy provisions of this Section 2.21 and any such Incremental Amendment collateral and other documentation shall have been delivered to the Administrative Agent, (x) all fees required to be paid deemed “Loan Documents” hereunder and may be memorialized in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparties hereto.
(c) Notwithstanding anything to the contrary contained above in foregoing, no Incremental Commitment shall become effective under this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
2.21 unless (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of such effectiveness, to the making extent required by the relevant Incremental Assumption Agreement, the conditions set forth in clauses (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such new date and executed by a Responsible Officer of the Borrower and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Term Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably request to assure that the Loans in respect of Incremental Commitments are secured by the Collateral ratably with one or more Classes of the then existing Loans.
(d) 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 Loans in respect of Incremental Commitments, and notwithstanding when originally made, are included in each Borrowing of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary set forth in Section 2.092.18(c) (which provisions shall not be applicable to clauses (e) through (i) of this Section 2.21), such new Incremental Term Loans shall be added pursuant to (and form part of) each Borrowing one or more offers made from time to time by the Borrower to all Lenders of outstanding Term Loans any Class of the applicable Tranche Revolving Commitments, on a pro rata basis (based on the relative sizes aggregate outstanding Revolving Commitments under such Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Commitments of such Class and to otherwise modify the terms of such Lender’s Commitments of such Class pursuant to the terms of the various outstanding Borrowingsrelevant Pro Rata Extension Offer (including without limitation increasing the interest rate or fees payable in respect of such Lender’s Commitments). For the avoidance of doubt, so the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Revolving Commitments, that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans all of the respective Tranche (after giving effect to the incurrence Revolving Commitments of such new Incremental Term Loans pursuant Class are offered to Section 2.01(b)) on a pro rata basis. To be extended for the extent the provisions same amount of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged time and that the effect thereof may result in interest rate changes and fees payable with respect to such new extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loans having irregular Interest Periods Commitment for such Lender (i.e.such extended Revolving Commitment, an Interest Period “Extended Revolving Commitment”, and the Revolving Loans made thereunder “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period)Extended Revolving Commitment shall be extended, which irregular interest periods shall be permitted notwithstanding anything a date not earlier than five Business Days after the date on which notice is delivered to the contrary in this Agreement. All determinations by any the Administrative Agent of (or such shorter period agreed to by the LIBO Rate, Administrative Agent in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoits reasonable discretion).
(df) Subject The Borrower and each Extending Lender shall execute and deliver to compliance with the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Revolving Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable requirements Extended Revolving Commitments; provided, that (i) except as to fees (which fees shall be determined by the Borrower and set forth in this Section 2.15the Pro Rata Extension Offer), any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
Extended Revolving Commitment shall have (ix) the Lenders with respect same terms as an existing Class of Revolving Commitments or (y) have such other terms as shall be reasonably satisfactory to the relevant series of Term Loans and/or Administrative Agent and (ii) any Extended Revolving Commitments being extended, repriced or refinanced are offered the opportunity to may participate in such transaction on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and on terms of the same termsExtended Revolving Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) andand furnished to the other parties hereto. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Commitments in the manner specified in such Incremental Assignment Agreement, including upon effectiveness of such Extended Revolving Commitment or upon or prior to the maturity date for any Class of Revolving Commitment.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Revolving Commitment will be automatically designated an Extended Revolving Commitment. For purposes of this Agreement and the other Loan Documents, such Extending Lender will be deemed to have an Incremental Commitment having the terms of such Extended Revolving Commitment.
(h) Notwithstanding anything to the contrary set forth in this Agreement or any other Loan Document (including without limitation this Section 2.21), (i) the aggregate amount of Extended Revolving Commitments will not be included in the calculation of the Incremental Amount, (ii) no Extended Revolving Commitment is required to be in any minimum amount or any minimum increment, (iii) any Extending Lender may extend all or any portion of its Revolving Commitment pursuant to one or more Pro Rata Extension Offers (subject to applicable proration in the amount case of over participation) (including the extension of any Incremental Term Loans does not exceed Extended Revolving Commitment), (iv) there shall be no condition to any Extension of any Commitment at any time or from time to time other than notice to the sum Administrative Agent of (x) such Extension and the principal amount terms of the Extended Revolving Commitment implemented thereby pursuant to the applicable Term Loans effectively being extended, repriced or refinancedIncremental Assumption Agreement, (yv) fees all Extended Revolving Commitments and expenses all obligations in respect thereof shall be Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other Obligations of the relevant Loan Parties under this Agreement and the other Loan Documents and (including vi) no Issuing Bank or Swingline Lender shall be obligated to provide Swingline Loans or issue Letters of Credit under such Extended Revolving Commitments unless it shall have consented thereto.
(i) Each Extension shall be consummated pursuant to procedures set forth in the associated Pro Rata Extension Offer; provided, that the Borrower shall cooperate with the Administrative Agent prior to making any prepayment premium, penalties or other call protection) related Pro Rata Extension Offer to establish reasonable procedures with respect to mechanical provisions relating to such extensionExtension, repricing or refinancingincluding, without limitation, timing, rounding and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loansother adjustments.
Appears in 3 contracts
Sources: Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.)
Incremental Commitments. (a) Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO RateTerm SOFR, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an Incremental Facility on exceed the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the date of incurrence plus (y) case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Facility TestRevolving Lender is a Lender, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5.0 million and a new Tranche minimum amount of $25.0 million or equal to the remaining Incremental Amount), (i.e., not ii) the same as any existing Tranche aggregate amount of Incremental Term Loans, all Incremental Term Loan Commitments or other and Incremental Revolving Facility Commitments taken together shall not exceed $285,000,000, (iii) the date on which such Incremental Term LoansLoan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), unless (iv) in the requirements case of Section 2.15(c) Incremental Revolving Loan Commitments, whether such Incremental Revolving Loan Commitments are satisfiedto be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Revolving Loans”), which designation shall be set forth and (v) in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche case of Incremental Term LoansLoan Commitments, whether such Incremental Term Loans shall have Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term B Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding “Other Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have been delivered (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (iv) the Other Revolving Loans shall rank pari passu or junior in right of payment and of security with the Revolving Loans, (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) all fees required to the same terms as the Revolving Loans or (y) such other terms as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent, and (vi) the weighted average life to maturity of any Other Revolving Loans shall be no shorter than the remaining weighted average life to maturity of the Revolving Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as but only to the effectiveness of each Incremental Amendment, and at such time, (iextent) Schedule 2.01 shall be deemed modified necessary to reflect the revised Incremental Commitments existence and terms of the affected Lenders Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (not ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to be unreasonably withheldthe extent required by the Administrative Agent, delayed or conditioned), consistent with those delivered on the parties Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to a given Incremental Amendment the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably require to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, and be added to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date thereunder and the same Applicable Margins application of the proceeds therefrom as if made and applied on such date.
(d) Each of the Tranche of Term Loans parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to which the new ensure that (i) all Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental other than Other Term Loans) in the form of additional Term B Loans, and notwithstanding anything to the contrary set forth when originally made, are included in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term B Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of the various outstanding BorrowingsIncremental Revolving Facility Commitments (other than Other Revolving Loans), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates when originally made, are included in each outstanding Borrowing of Term outstanding Revolving Facility Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to the then outstanding Borrowings of LIBO Rate ABR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations reasonably required by any the Administrative Agent of to effect the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (Verso Paper Holdings LLC), Credit Agreement (Verso Sartell LLC)
Incremental Commitments. (a) The Borrower may at or any time and Co-Borrower may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or, at the option of the incurrence thereof shall not exceedBorrower or such Co-Borrower, when taken together with any at the time of incurrence of Permitted Pari Passu Notesthe Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, Permitted Pari Passu Loans or Permitted Junior Debt pursuant as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans than on the provisions applicable to same terms as the existing Term 2024 Revolving Loans or as are otherwise reasonably satisfactory (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial 2024 Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) the commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B-1 Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, The Borrower, the Administrative Agent each applicable Co-Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental 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 and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B-1 Loans and/or 2024 Revolving Loans shall have the same terms as the Term B-1 Loans or 2024 Revolving Loans, respectively;
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B-1 Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below);
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B-1 Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 Loans;
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the 2024 Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the 2024 Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement);
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2024 Revolving Facility Maturity Date and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the 2024 Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to the Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not require exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2024 Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party; and
(x) any such Other Term Loans or Other Revolving Loans may include financial maintenance covenants in addition to, or more onerous than, the Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as (x) with respect to Other Revolving Loans, such Previously Absent Financial Maintenance Covenant shall automatically apply to the Revolving Facilities and (y) with respect to Other Term Loans, such Previously Absent Financial Maintenance Covenant shall automatically apply to the Facilities, in each case, without the consent of any other Lender)party hereto. Each party hereto hereby agrees that, with upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided therein for in Section 9.08(e). Any amendment to occur on this Agreement or any other Loan Document that is necessary to effect the date on which (w) a fully executed copy provisions of this Section 2.21 and any such Incremental Amendment collateral and other documentation shall have been delivered to the Administrative Agent, (x) all fees required to be paid deemed “Loan Documents” hereunder and may be memorialized in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, delayed or conditionedno Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to a given the extent required by the Administrative Agent, consistent with those delivered on the Closing Date pursuant to the First Incremental Assumption and Amendment Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term SOFR Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower, each applicable Co-Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.ha
Appears in 2 contracts
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.), Incremental Assumption and Amendment Agreement (ADT Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Revolving Facility Lenders (or one or more Eligible Transferees who will become Lenderswhich may include any existing Lender) willing to provide an increase such Incremental Revolving Facility Loans in their own discretion; provided that each Incremental Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, Facility Lender shall be subject to the terms approval of the Administrative Agent and conditions contained in this Agreement and in the relevant each L/C Issuer (neither of which approvals shall be unreasonably withheld) unless such Incremental AmendmentRevolving Facility Lender is a Lender, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (i) no Lender the amount of the Incremental Revolving Facility Commitments being requested (which shall be obligated in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to provide an the remaining Incremental Facility as a result of any such request by BorrowerAmount), (ii) any Lender the date on which such Incremental Revolving Facility Commitments are requested to become effective (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender“Increased Amount Date”), and (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide whether such Incremental Revolving Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the Commitments are to be Revolving Facility Commitments or commitments to make revolving loans up to an aggregate principal amount of any Loan or Commitment$10,000,000 under a “first-in, last-out” tranche on customary terms (referred to herein as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term “FILO Revolving Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Revolving Facility Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Revolving Facility Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Revolving Facility Commitments; provided that (i) all Incremental Facility Loans that are additional Revolving Facility Loans shall have been delivered the same terms as the Revolving Facility Loans, (ii) the FILO Revolving Loans shall rank junior in right of payment but pari passu in right of security with the Revolving Facility Loans and, except as to pricing and final maturity date, shall have (x) the same terms as the Revolving Loans, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent; provided that the interest rate margins then in effect for outstanding Revolving Facility Loans shall not be increased to equal the interest rate margins for FILO Revolving Loans, (xiii) all fees required the final maturity date of any FILO Revolving Loans shall be no earlier than the Revolving Facility Maturity Date, and (iv) the weighted average life to maturity of any FILO Revolving Loans shall be paid no shorter than the remaining weighted average life to maturity of the Revolving Facility Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Facility Commitments evidenced thereby as provided for in connection therewith at the time of Section 10.01. Any such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to deemed amendment may be memorialized in writing by the Administrative Agent with the Company’s consent (not to be unreasonably withheld) and furnished to the extent other parties hereto, it served being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or any other Loan Document as may be necessary or appropriate, in the arranger for opinion of the Incremental Commitments)Administrative Agent, (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in to effect the provisions of this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender 2.15, including the establishment of any “FILO Revolving Loan” commitments as to the effectiveness of each Incremental Amendmenta “first-in, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderlast-out” tranche on customary terms.
(c) Notwithstanding anything to the contrary contained above in foregoing, no Incremental Revolving Facility Commitment shall become effective under this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
2.15 unless (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of such effectiveness, the making of such new Incremental Term Loans, and notwithstanding anything to the contrary conditions set forth in paragraphs (b) and (c) of Section 2.09, such new Incremental Term Loans 5.01 shall be added satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 5.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Revolving Facility Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Revolving Facility Loans, (iii) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (iv) before and after giving effect to any Incremental Revolving Facility Commitment (including any FILO Revolving Loan), the aggregate par principal amount of Revolving Facility Commitments directly held by all Affiliated Lenders shall not, collectively, exceed 10.0% of the aggregate par principal amount of all Revolving Facility Commitments (including any FILO Revolving Loans).
(d) 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 Revolving Facility Loans (other than FILO Revolving Loans) in the form part of) of additional Revolving Facility Loans, when originally made, are included in each Borrowing of outstanding Term Revolving Facility Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 3.05 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurodollar Rate Loans to the then outstanding Borrowings of LIBO Base Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations reasonably required by any the Administrative Agent of to effect the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Abl Credit Agreement (Constellium Holdco B.V.), Abl Credit Agreement (Constellium Holdco B.V.)
Incremental Commitments. (a) The Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) time, by written notice to provide an increase in Revolving Commitments the Credit Facility Agent (a “Revolving Working Capital Commitment Increase Notice”), request increases in the Working Capital Commitments (together with any applicable corresponding increases in the Issuing Bank Limits) of the relevant Working Capital Lender, Issuing Bank or by any other Person that is an Eligible Assignee or satisfies the rating requirement set forth in the definition of “Issuing Bank,” as applicable (each, a “Working Capital Commitment Increase”), one or more additional Tranches up to an aggregate principal amount not to exceed the maximum amount of Revolving Commitments Working Capital Debt permitted pursuant to Section 6.2(a) (an “Additional/Replacement Revolving Commitment”Working Capital Debt) or Incremental Term Loan Commitments of the Common Terms Agreement.
(such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving b) The Working Capital Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that Notice shall specify (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of on which the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on Borrower proposes that such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Working Capital Commitment Increase shall be identical effective, which shall be a date not less than thirty (30) days after the date on which such notice is delivered to the Initial Revolving Loans and Credit Facility Agent (or, subject to clause (c)(iii)(E) below, such shorter period of time as agreed by the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans Incremental Lender/Issuing Banks (including, without limitation, the following: (Aas defined below) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably participating in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Working Capital Commitment Increase), (Eii) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage amounts of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Working Capital Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any proposed increase in Non-Fronting Limit or Fronting Limit of an Issuing Bank) and (iii) the identity of each Working Capital Lender, Issuing Bank or other Person that is an Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to Assignee or satisfies the satisfaction of the relevant conditions rating requirement set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment definition of “Issuing Bank,” as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender/Issuing Bank”) shall execute and deliver to whom the Administrative Agent an Incremental Amendment (which shall not require the consent of Borrower proposes any other Lender), with the effectiveness portion of the Incremental Working Capital Commitment provided therein to occur on Increase be allocated and the date on which (w) a fully executed copy amounts of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitationallocations; provided that, any agreed upon upfront Working Capital Lender, Issuing Bank or arrangement fees owing other Person approached to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) provide all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments or a portion of the affected Lenders Working Capital Commitment Increase may elect or decline, in its sole and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lenderabsolute discretion, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparticipate.
(c) Notwithstanding anything Each Working Capital Commitment Increase shall become Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) (or, in the case of an increase in the commitment of an existing Working Capital Lender or Issuing Bank, an increase in such Working Capital Lender’s or Issuing Bank’s applicable Working Capital Commitment, Issuing Bank Limit, Non-Fronting Limit or Fronting Limit (as applicable)) under this Agreement pursuant to an amendment (such amendment, an “Incremental Amendment”) to this Agreement executed by the contrary contained above in this Section 2.15Borrower, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to Credit Facility Agent and each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, Lender/Issuing Bank (with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
no other Working Capital Lender being required) which provides solely for (i) the increase in the applicable Working Capital Commitments, Issuing Bank Limits, Non-Fronting Limits or Fronting Limits (as applicable) proposed in the applicable Working Capital Commitment Increase Notice and consented to by the applicable Incremental Term Loans Lender/Issuing Bank, (ii) amendments required to be made pursuant reflect the relative unfunded Commitments of the Incremental Lenders/Issuing Banks and (iii) the joinder of each Incremental Lender/Issuing Bank that is not already an existing Working Capital Lender or Issuing Bank party to such this Agreement. The effectiveness of any Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect be subject solely to the Tranche to which conditions that (A) no Loan Facility Event of Default or Unmatured Loan Facility Event of Default shall exist on such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (effectiveness before or after giving effect to such Working Capital Commitment Increase, (B) each Incremental Lender/Issuing Bank that is not already a Working Capital Lender shall be entitled to receipt of any required reliance letters in respect of the incurrence of such new Incremental Term Loans legal opinions provided to the Credit Facility Agent pursuant to Section 2.01(b)4.1(f) on a pro rata basis. To the extent the provisions (Conditions to Initial Closing Date and Initial Advance – Opinions from Counsel) of the preceding clause Common Terms Agreement or Section 4.2(f) (iiiConditions to Upsize Closing Date – Opinions from Counsel) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans of the Common Terms Agreement, as applicable, (C) since the time of the financial statements most recently provided pursuant to Section 10.1(a) (Accounting, Financial and Other Information) of the then outstanding Borrowings of LIBO Rate Loans of such TrancheCommon Terms Agreement no developments have occurred which, it is acknowledged that individually or in the effect thereof may aggregate have resulted in or could reasonably be expected to result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.Material Adverse Effect,
Appears in 2 contracts
Sources: Credit Facility Agreement (Venture Global, Inc.), Credit Facility Agreement (Venture Global, Inc.)
Incremental Commitments. (a) The Borrower may at by written notice to the Administrative Agent elect to request (x) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (each, an “Incremental Revolving Commitment”, and any time and from time to time request such increase, an “Incremental Revolving Facility”) and/or (y) the establishment of one or more Lenders new term loan commitments (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term LoanCommitment” and, collectively(and together with the Incremental Revolving Commitments, the “Incremental Term Loans” andCommitments”), collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, eachsuch increase, an “Incremental Term Facility” and collectivelyand, together with any Incremental Revolving Facility, the “Incremental Facilities”) ), by an aggregate amount not in excess of the Incremental Available Amount; provided that, with respect to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant Term Commitment the primary purpose of which is to finance a given Permitted Acquisition or similar Investment permitted by this Agreement, whose consummation is not conditioned on the availability of, or on obtaining, financing, the Incremental Amendment shall Ratio Amount may, at the Borrower’s option, be in tested on a minimum aggregate amount for all Lenders which provide pro forma basis giving effect to such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan Permitted Acquisition or Commitmentsimilar Investment, as applicable, pursuant to an Incremental Facility on at the date of time the incurrence thereof shall not exceeddefinitive agreements for such Permitted Acquisition or similar Investment, when taken together with any incurrence of Permitted Pari Passu Notesas applicable, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) are entered into rather than at the then-remaining Fixed Incremental Amount as of the date time of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of (and, in connection with any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization subsequent calculation of such Tranche ratio or any incurrence ratio under Section 7.01(a)(xxiii) prior to the consummation or termination of Incremental Term Loans may differsuch Permitted Acquisition or similar Investment, so long asas applicable, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase ratio shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after a pro forma basis giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments Permitted Acquisition or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranchesimilar Investment, as applicable, for all purposes and other transactions in connection therewith (including any incurrence of this Agreement Indebtedness and the other applicable Credit Documents use of proceeds thereof)). Each such notice shall specify (i) the date (each, an “Increase Effective Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent (or such shorter period as may be agreed to by the Administrative Agent in its sole discretion) and (xivii) the identity of each Lender to whom the Borrower proposes any portion of such Incremental Commitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment. Each Incremental Commitment Requirements are satisfiedshall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the aggregate limit in respect of Incremental Commitments set forth in above).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (The proceeds in connection with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an any Incremental Commitment (eachmay be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, an “Incremental Lender”) shall execute including the financing of Permitted Acquisitions and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of other Investments and any other Lender), with use not prohibited by the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental LenderLoan Documents.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (Griffon Corp), Credit Agreement (Griffon Corp)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an Incremental Facility on exceed the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of at the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based time such Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Commitments are established from one or more Incremental Term Loan Commitments being provided thereunder Lenders and/or Incremental Revolving Facility Lenders (which Tranche shall be a new Tranche (i.e., not the same as may include any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(cLender) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if willing to be incurred as a new Tranche of Incremental Term Loans, provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is be subject to the requirements approval of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with and, to the consent of extent the Administrative Agentsame would be required for an assignment under Section 9.04, each the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be unreasonably withheld (x) commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or delayed(y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Initial Revolving Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental LenderOther Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security, shall have (x) substantially the same terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans shall rank pari passu in right of security with the Initial Revolving Loans,
(vi) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions, shall have (x) all fees required substantially the same terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Other Term Loan that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(iviii) Schedule 2.01 with respect to any commitments to make Other Revolving Loans that rank pari passu in right of security with the Initial Revolving Loans, the All-in Yield of such Other Revolving Loans shall be the same as that applicable to the Initial Revolving Loans on the Closing Date, except that the All-in Yield in respect of any such Other Revolving Loan may exceed the All-in Yield in respect of such Initial Revolving Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Revolving Yield Differential”) then the Applicable Margin applicable to such Initial Revolving Loans shall be increased such that after giving effect to such increase, the Revolving Yield Differential shall not exceed 0.50%;
(A) the Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) the Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(x) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed modified “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to reflect the revised Incremental Commitments of the affected Lenders be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clauses (b) and (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to be unreasonably withheldthe extent required by the Administrative Agent, delayed or conditioned), consistent with those delivered on the parties Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to a given Incremental Amendment the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including any prepayment premium, penalties or have such other call protection) related terms as shall be reasonably satisfactory to such extension, repricing or refinancingthe Administrative Agent, and (zv) fees and expenses any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (including but not greater than a pro rata basis) in any upfront feesvoluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related this Agreement shall be amended to the establishment extent (but only to the extent) necessary to reflect the existence and incurrence terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). 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. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Incremental Term Loans.Extended Revolving Facility Commitment or upon or prior to the
Appears in 2 contracts
Sources: First Lien Credit Agreement (McGraw-Hill Interamericana, Inc.), First Lien Credit Agreement (McGraw-Hill Global Education LLC)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time request time, on one or more Lenders (or occasions, request Incremental Commitments in an additional aggregate principal amount not to exceed the Incremental Commitment Cap from one or more Eligible Transferees who will become LendersIncremental Lenders (which may include any existing Lender (each of which shall be entitled to agree or decline to participate in its sole discretion)) willing to provide an increase such Incremental Commitments, as the case may be, in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant theretotheir own discretion; it being understood and agreed, howeverprovided, that (i) no each Incremental Lender shall be obligated subject to provide an the approval of the Administrative Agent (which approval shall not be unreasonably withheld, delayed or conditioned), the Swingline Lender (which approval shall not be unreasonably withheld, delayed or conditioned) and the Borrower (in its sole discretion) unless such Incremental Facility as Lender is a result of any such request by BorrowerLender, and (ii) each Incremental Commitment shall be on the same terms as the existing Commitments (except with respect to any Lender (including any Eligible Transferee who will underwriting, upfront or similar fees that may be agreed to among the Borrower and the Incremental Lenders providing such Incremental Commitments) and in all respects shall become a Lender) may so provide an Incremental Facility without part of the Commitments hereunder on such terms; provided, that, with the consent of the Borrower, the Applicable Rate and Commitment Fee Rate applicable to the then existing Commitments shall automatically be increased (but in no event decreased) to the extent necessary to cause any other Lender, Incremental Commitment to comply with this clause (iii) each Incremental Facility ii). Such notice shall be denominated in Dollars or an Alternative Currency, set forth (iv1) the amount of any the Incremental Facility made available pursuant to a given Incremental Amendment Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum aggregate amount for all Lenders which provide of $10,000,000 (or such lesser amount as the Administrative Agent may agree) or equal to the remaining Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000Amount), (v2) the aggregate principal amount of any Loan or CommitmentIncremental Commitments, as applicablewhich shall not exceed the Incremental Amount, pursuant to an Incremental Facility on and (3) the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior Commitments are requested to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% become effective (the “MFN Pricing TestIncreased Amount Date”); and (III) such Tranche of Incremental Term Loans may . The Borrower shall have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as no obligation to offer any Lender the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable opportunity to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably participate in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Incremental Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require Assumption Agreement. Each of the consent of any other Lender), with parties hereto hereby agrees that upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to increase the Commitments by the amount of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of Commitments evidenced thereby. Any such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to deemed amendment may be paid memorialized in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparties hereto.
(c) Notwithstanding anything to the contrary contained above in foregoing, no Incremental Commitment shall become effective under this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
2.22 unless (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of such effectiveness, the making of such new Incremental Term Loans, and notwithstanding anything to the contrary conditions set forth in paragraphs (b) and (c) of Section 2.09, such new Incremental Term Loans 4.02 shall be added satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, and (ii) the Administrative Agent shall have received legal opinions, board resolutions and form part ofother closing certificates and documentation to the extent reasonably required by the Administrative Agent, in each case consistent with those delivered on the Effective Date under Section 4.01 and such additional documents and filings as the Administrative Agent may reasonably require to assure that the Loans in respect of Incremental Commitments are secured by the Collateral ratably with all other Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure all Revolving Loans in respect of Incremental Commitments, when originally made, are included in each Borrowing of outstanding Term Revolving Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (Robinhood Markets, Inc.), Credit Agreement (Robinhood Markets, Inc.)
Incremental Commitments. (a) The Borrowers (or the Borrower may at any time and Representative on behalf thereof) may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an Incremental Facility on exceed the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of available at the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based time such Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Commitments are established from one or more Incremental Term Loan Commitments being provided thereunder Lenders and/or Incremental Revolving Facility Lenders (which Tranche shall be a new Tranche (i.e., not the same as may include any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(cLender) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if willing to be incurred as a new Tranche of Incremental Term Loans, provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is be subject to the requirements approval of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with and, to the consent of extent the Administrative Agentsame would be required for an assignment under Section 9.04, each Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be unreasonably withheld (x) commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or delayed(y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Initial Revolving Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental LenderOther Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrowers and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall be secured equally and ratably with or, at the option of the Borrowers, shall be junior in right of security with the Term B Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall (a) be subject to a Permitted Junior Intercreditor Agreement and (b) be established as a separate facility (and documented in a separate loan agreement from this Agreement), and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrowers and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall be secured equally and ratably with or, at the option of the Borrowers, junior in right of security with the Initial Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be (a) subject to a Permitted Junior Intercreditor Agreement and (b) established as a separate facility (and will be documented in a separate loan agreement from this Agreement)),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and shall have no amortization and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrowers and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) all fees required substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(iviii) Schedule 2.01 (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans, to the extent secured by Liens on the Collateral equally and ratably with Term B Loans, may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed modified “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrowers’ consent (not to reflect the revised Incremental Commitments of the affected Lenders be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower Representative and (not ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to be unreasonably withheldthe extent required by the Administrative Agent, delayed or conditioned), consistent with those delivered on the parties Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to a given Incremental Amendment the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class or which are junior in right of security with Term B Loans), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class or which are junior in right of security with the relative sizes Initial Revolving Loans), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrowers agree that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrowers to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding amount of Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrowers are hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrowers and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrowers propose that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrowers and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrowers and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum Latest Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrowers and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any prepayment premiumother terms that would affect the rights or duties of any Issuing Bank or Swingline Lender, penalties or other call protection) related such terms as shall be reasonably satisfactory to such extensionIssuing Bank or Swingline Lender, repricing (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or refinancing, a less than pro rata basis (but not greater than a pro rata basis) than the Initial Revolving Loans in any voluntary or mandatory prepayment or commitment reduction hereunder and (zvi) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Extended Term Loans.Loans may participate on a pro rata basis or a less th
Appears in 2 contracts
Sources: Credit Agreement (Presidio, Inc.), Credit Agreement (Presidio, Inc.)
Incremental Commitments. (a) 3. The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any at the time of incurrence of Permitted Pari Passu Notesthe Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, Permitted Pari Passu Loans or Permitted Junior Debt pursuant as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are requested to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) the commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(ba) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, financial maintenance covenants, participation in mandatory prepayments, commitment reductions, borrowing mechanics, assignments, participations and other provisions customarily found in revolving credit facilities (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) all fees required substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Other Term Loan incurred prior to the 12-month anniversary of the Closing Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, (i) Schedule 2.01 and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be deemed modified increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the revised Incremental Commitments existence and terms of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided by an Incremental Lender for in Section 9.08(e). Any amendment to this Agreement or Incremental Lenders, as any other Loan Document that is necessary to effect the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which provisions of this Section 2.21 and any such collateral and other documentation shall be separate deemed “Loan Documents” hereunder and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of 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.
(b) Notwithstanding the foregoing, delayed no Incremental Term Loan Commitment or conditioned)Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, to the extent required by the relevant Incremental Assumption Agreement, the parties conditions set forth in clause (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a given Responsible Officer of the Borrower and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Amendment Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 of the Original First Lien Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(c) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding d) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(e) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any prepayment premiumother terms that would affect the rights or duties of any Issuing Bank, penalties or other call protection) related such terms as shall be reasonably satisfactory to such extensionIssuing Bank, repricing (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or refinancing, a less than pro rata basis (but not greater than a pro rata basis) than the Initial Revolving Loans in any voluntary or mandatory prepayment or commitment reduction hereunder and (zvi) fees and expenses any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (including but not a greater than pro rata basis) than the Term B Loans in any upfront feesmandatory prepayment hereunder. Upon the effectiveness of any Incremental Assumption Agreement, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related this Agreement shall be amended to the establishment and incurrence of such Incremental Term Loans.extent (but only to the extent) neces
Appears in 2 contracts
Sources: First Lien Credit Agreement (Hostess Brands, Inc.), First Lien Credit Agreement (Hostess Brands, Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans at the time such Incremental Commitments are committed to) from one or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the more Incremental Term Loan Commitments being provided thereunder Lenders and/or Incremental Revolving Facility Lenders (which Tranche shall be a new Tranche (i.e., not the same as may include any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(cLender) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if willing to be incurred as a new Tranche of Incremental Term Loans, provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is be subject to the requirements approval of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with and, to the consent of extent the Administrative Agentsame would be required for an assignment under Section 9.04, each the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be unreasonably withheld (x) commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or delayed(y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Initial Revolving Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental LenderOther Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans, and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Term B Loans,
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), shall have (x) substantially the same terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Initial Revolving Loans,
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans, there shall be no amortization and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) all fees required substantially the same terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) by more than 0.50% then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to the Term B Loans made on the Closing Date and the Effective Date shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(iviii) Schedule 2.01 (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder, and
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed modified “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to reflect the revised Incremental Commitments of the affected Lenders be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, delayed or conditionedno Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred or be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to a given Incremental Amendment the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part of, and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including any prepayment premium, penalties or have such other call protection) related terms as shall be reasonably satisfactory to such extension, repricing or refinancingthe Administrative Agent, and (zv) fees and expenses any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (including but not greater than a pro rata basis) in any upfront feesvoluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related this Agreement shall be amended to the establishment extent (but only to the extent) necessary to reflect the existence and incurrence terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). 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. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Incremental Term LoansExtended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitments.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lend
Appears in 2 contracts
Sources: Incremental Assumption Agreement (PlayAGS, Inc.), Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans at the time such Incremental Commitments are committed to) from one or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the more Incremental Term Loan Commitments being provided thereunder Lenders and/or Incremental Revolving Facility Lenders (which Tranche shall be a new Tranche (i.e., not the same as may include any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(cLender) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if willing to be incurred as a new Tranche of Incremental Term Loans, provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is be subject to the requirements approval of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with and, to the consent of extent the Administrative Agentsame would be required for an assignment under Section 9.04, each the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be unreasonably withheld (x) commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or delayed(y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Initial Revolving Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental LenderOther Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans, and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Term B Loans,
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), shall have (x) substantially the same terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Initial Revolving Loans,
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans, there shall be no amortization and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) all fees required substantially the same terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) by more than 0.50% then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(iviii) Schedule 2.01 (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder, and
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed modified “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to reflect the revised Incremental Commitments of the affected Lenders be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, delayed or conditionedno Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred or be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to a given Incremental Amendment the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part of, and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including any prepayment premium, penalties or have such other call protection) related terms as shall be reasonably satisfactory to such extension, repricing or refinancingthe Administrative Agent, and (zv) fees and expenses any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (including but not greater than a pro rata basis) in any upfront feesvoluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related this Agreement shall be amended to the establishment extent (but only to the extent) necessary to reflect the existence and incurrence terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). 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. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Incremental Extended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitments.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loans.Loan will be automatically designated
Appears in 2 contracts
Sources: First Lien Credit Agreement (AP Gaming Holdco, Inc.), First Lien Credit Agreement (AP Gaming Holdco, Inc.)
Incremental Commitments. (a) Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial 20242025 Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial 20242025 Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial 20242025 Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical either (x) to the Initial Revolving Loans and the Closing Date Revolving Commitments or (y) to the 2024 Revolving Loans and the 2024 Revolving Commitments, as elected by the Borrower, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans or 2024 Revolving Loans, as applicable (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans and the 2024 Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c2.01(de) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b2.01(de)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO RateTerm SOFR, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, from time to time time, by written notice to the Administrative Agent, request Incremental Term Loan Commitments (together with delayed draw term loan commitments (“Incremental Delayed Draw Term Loan Commitments” and the Loans thereunder, the “Incremental Delayed Draw Term Loans”), the “Incremental Term Loan Commitments” and the Loans provided thereunder, “Incremental Term Loans”) and/or additional Revolving Commitments, as applicable (“Incremental Revolving Commitment” and together with the Incremental Term Loan Commitments, “Incremental Commitments”, and collectively with Incremental Term Loan Commitments and Incremental Term Loans, “Incremental Facilities”), from one or more Lenders (in the sole discretion of such Lenders) or one or more Eligible Transferees Assignees who will become Lenders) Lenders (in each case, subject to provide an increase the consent of Informa Group Holdings Limited in Revolving Commitments its sole discretion (solely so long as Informa Group Holdings Limited or any of its Affiliates is a “Revolving Commitment Increase”Lender), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” andAdditional Lender”), collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, in an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of up to the sum of (x) the greater of (A) $125,000,000 and (B) 100.0% of Consolidated EBITDA for the most recent Measurement Period calculated on a Pro Forma Basis (in each case less any Loan or Commitmentsuch amount previously utilized to incur any Incremental Equivalent Debt) plus (y) all voluntary prepayments, debt buy-backs (including, in the case of loan buy-backs, the cash amount of loans repurchased), and voluntary permanent commitment reductions and payments utilizing Section 3.7(b), as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and any Incremental Equivalent Debt (including voluntary prepayments made at a discount to par, with credit given for the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (cash amount of the “MFN Pricing Test”debt repurchased); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I, payments utilizing Section 3.7(b) and (II)) that may differ from those voluntary permanent commitment reductions of other Tranches of Term Loans, including, without limitation, as the Revolving Facility and any Incremental Revolving Commitments prior to the application date of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loansany such incurrence, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security extent not funded with the Initial Revolving Loansproceeds of long term debt (other than revolving Indebtedness) (in each case, other than any prepayments, buy-backs or reductions of Indebtedness outstanding in reliance on clause (xz)) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, plus (z) an additional unlimited principal amount so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At at the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy incurrence of such Incremental Amendment shall have been delivered to the Administrative Agent, Commitments (x) all fees required to be paid in connection therewith with any Incremental Delayed Draw Term Loan Commitments being deemed incurred at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing establishment) and immediately after giving effect thereto and to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments use of the affected Lenders and proceeds thereof (ii) to assuming the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditionedfull utilization thereof), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
Consolidated Senior Secured Net Leverage Ratio (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (calculated on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (Pro Forma Basis after giving effect to the incurrence of such new Incremental Facility (other than any amount incurred simultaneously therewith under clause (x) and/or (y) above) and any Acquisition or Investment consummated in connection therewith, and assuming for purposes of this calculation that (a) the full committed amount of any Incremental Commitment (including any Incremental Delayed Draw Term Loans pursuant Loan Commitments) then being incurred is fully drawn and (b) the cash proceeds of such Incremental Commitment then being incurred shall not be netted from Indebtedness for purposes of calculating the Consolidated Senior Secured Net Leverage Ratio) shall be less than or equal to Section 2.01(b2.50:1.00 for the most recently ended Measurement Period (the sum of clauses (x), (y) and (z), the “Available Incremental Amount”); provided that all or any portion of any Incremental Commitments or Incremental Equivalent Debt incurred in reliance on clause (x) and/or clause (y) shall be reclassified as the Borrower may elect from time to time as incurred under clause (z) if the Consolidated Senior Secured Net Leverage Ratio would not have exceeded 2.50:1.00 on a pro rata basis. To Pro Forma Basis for the extent most recently ended Measurement Period at the provisions time of such proposed reclassification, and if the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add Consolidated Senior Secured Net Leverage Ratio does not exceed 2.50:1.00 on a Pro Forma Basis at the end of any subsequent Measurement Period after the initial incurrence of such Incremental Term Loans Commitments or Incremental Equivalent Debt, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. Each such person providing an Incremental Revolving Commitment, if not already a Lender hereunder, shall be subject to the then outstanding Borrowings approval of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of and the LIBO RateSwingline Lender (which approvals shall not be unreasonably withheld, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements conditioned or delayed). Such notice shall set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to amount of the relevant series Incremental Facility being requested (which shall be in minimum increments of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on $1,000,000 and a pro rata basis (minimum amount of $10,000,000) and on the same terms) and
(ii) the amount of any date on which such Incremental Term Loans does Facility is requested to become effective (which shall not exceed be less than ten (10) Business Days nor more than sixty (60) calendar days after the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence date of such notice, unless otherwise agreed to by the Administrative Agent). All Incremental Term LoansFacilities shall be made in Dollars.
Appears in 2 contracts
Sources: Credit Agreement (TechTarget, Inc.), Credit Agreement (TechTarget Holdings Inc.)
Incremental Commitments. (a) Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate RateTerm SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate RateTerm SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO RateRateTerm SOFR, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Incremental Commitments. (a) Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Initial2024 Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Initial2024 Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Initial2024 Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical either (x) to the Initial Revolving Loans and the Closing Date Revolving Commitments or (y) to the 2024 Revolving Loans and the 2024 Revolving Commitments, as elected by the Borrower, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans or 2024 Revolving Loans, as applicable (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans or the 2024 Revolving Loans, as applicable, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, or the 2024 Revolving Loans, as applicable, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans and the 2024 Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c2.01(cd) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b2.01(bd)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Term SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Term SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO RateTerm SOFR, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (McGraw Hill, Inc.), Credit Agreement (McGraw Hill, Inc.)
Incremental Commitments. (a) The U.S. Borrower may at any time and or the Dutch Borrower may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans incurred and/or Incremental Revolving Facility Loans, as the case may be, in connection therewith, each, an “their own discretion; provided that each Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, Facility Lender shall be subject to the terms and conditions contained in this Agreement and in approval of the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that Administrative Agent (which approval shall not be unreasonably withheld). Such notice shall set forth (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $1.0 million and a new Tranche minimum amount of $25.0 million or equal to the remaining Incremental Amount), (i.e., not ii) the same as any existing Tranche of Incremental Term Loans, date on which such Incremental Term Loan Commitments or other and/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”) and (iii) (a) whether such Incremental Term Loans), unless the requirements of Section 2.15(c) Loan Commitments are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental C-1 Term Loan Commitments, Tranche C-2 Term Loan Commitments, Tranche C-4 Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the Tranche C-1 Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding C-2 Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Tranche C-4 Term Loans (“Other Term Loans”) and/or (b) whether such Incremental Revolving Facility Commitments are to be Canadian Tranche Commitments, (II) European Tranche Commitments, U.S. Tranche Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Effective Yield applicable to such Canadian Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Revolving Facility Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term European Tranche Revolving Facility Loans and the corresponding Effective Yield on such then outstanding Initial Term U.S. Tranche Revolving Facility Loans is equal to 0.50% (the “MFN Pricing TestOther Revolving Facility Loans”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The U.S. Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental 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 and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving Facility Loans to be made thereunder; provided that (i) the Other Term Loans and Other Revolving Facility Loans shall rank pari passu or junior in right of payment and of security with the Tranche C-1 Term Loans, Tranche C-2 Term Loans, Tranche C-4 Term Loans and Revolving Facility Loans and (except as to pricing and amortization) shall have the same terms as the Tranche C-1 Term Loans, Tranche C-2 Term Loans or Tranche C-4 Term Loans, as applicable, (ii) the final maturity date of (a) any Other Term Loans shall be no earlier than the Term Loan Maturity Date and/or (b) any Other Revolving Facility Loans shall be no earlier than the Revolving Facility Maturity Date; provided that any Other Term Loans and any Other Revolving Facility Loans may provide for an acceleration of their maturity to an Early Maturity Test Date if, on such Early Maturity Test Date, the aggregate principal amount of Early Maturity Notes that mature within 91 days after such Early Maturity Test Date exceeds $200.0 million, (iii) 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 and (iv) the Other Revolving Facility Loans shall require no scheduled amortization or mandatory commitment reductions prior to the Revolving Facility Maturity Date; provided further that the interest rate margin (which shall not require the consent be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan) in respect of any other LenderOther Term Loan and/or Other Revolving Facility Loan shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Term Loan and/or Other Revolving Facility Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan) may exceed the Applicable Margin for the Term Loans and/or the Revolving Facility Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term Loans and/or the Revolving Facility Loans), respectively, by no more than 1/2 of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered OID being equated to the Administrative Agent, (x) all fees required to be paid interest rates in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such Applicable Margin (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the extent it served Term Loans and/or the Revolving Facility Loans), such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Term Loan or Other Revolving Facility Loan, as the arranger case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Facility Loan), is no more than 1/2 of 1% higher than the Applicable Margin for the Incremental CommitmentsTerm Loans or the Revolving Facility Loans, respectively (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing the Term Loans and/or the Revolving Facility Loans), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, and at such timeupon the effectiveness of any Incremental Assumption Agreement, (i) Schedule 2.01 this Agreement shall be deemed modified amended to the extent (but only to the extent) necessary to reflect the revised Incremental Commitments existence and terms of the affected Lenders Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the U.S. Borrower’s consent (not to be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the U.S. Borrower, (not ii) the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 4.02 of the 2005 Credit Agreement and such additional documents and filings (including amendments to be unreasonably withheld, delayed or conditioned), the parties Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to a given Incremental Amendment may specify therein assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Incremental Revolving Facility Loans are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term Loans and Revolving Facility Loans and (iii) the U.S. Borrower would be added to, an existing Tranche of in Pro Forma Compliance after giving effect to such Incremental Term Loans, in any case so long as the following requirements are satisfied:
(i) Loan Commitment and/or Incremental Revolving Facility Commitments and the Incremental Term Loans and/or Incremental Revolving Facility Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date thereunder and the same Applicable Margins application of the proceeds therefrom as if made and applied on such date.
(d) Each of the Tranche of Term Loans parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to which the new ensure that all Incremental Term Loans are being added;
and/or Incremental Revolving Facility Loans (ii) the new Incremental other than Other Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans or Other Revolving Facility Loans), when originally made, are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth included in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of or Revolving Facility Loans under the applicable same Tranche on a pro rata basis (based on basis, and the relative sizes Borrowers agree that Section 2.17 shall apply to any conversion of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to the then outstanding Borrowings of LIBO ABR Loans or Base Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations reasonably required by any the Administrative Agent of to effect the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 2 contracts
Sources: Credit Agreement (Hexion Specialty Chemicals, Inc.), Credit Agreement (Hexion Specialty Chemicals, Inc.)
Incremental Commitments. (a) The Borrower may shall have the right to request at any time and from time to time request that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees who and which will become Lenders, subject to the terms set forth in Section 2.21) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that that:
(i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the Borrower, ;
(ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, ;
(iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, U.S. Dollars;
(iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, 25,000,000;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu NotesLoans, Permitted Pari Passu Loans Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(110.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, ;
(vi) the proceeds of all Incremental Facilities incurred by the Borrower may be used for any purpose not prohibited under this Agreement, ;
(vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ;
(viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; providedMaturity (in each case of the foregoing clauses (a) and (b), howeverexcluding for this purpose (x) interim loan financings that provide for automatic rollover, that Extendable Bridge Loans may have a maturity date earlier than subject to customary conditions, to Indebtedness otherwise meeting the Latest requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loansincurrence), (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding Initial Term B-12 Loans by more than 0.50% per annum, the Applicable Margins for such all then outstanding Initial Term B-12 Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% ” (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative AgentAgent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-12 Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans);
(ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (Loans, including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Applicable Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate Rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Revolving Commitments shall be reduced based on each Lender’s Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment IncreasePercentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, ;
(x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, ;
(xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are shall not materially more favorable require any scheduled amortization or mandatory commitment reduction prior to the Lenders providing such Latest Maturity Date of the Initial Revolving Loans and Closing Date Revolving Commitments than and shall be on substantially the provisions same terms as those applicable to the existing Initial Revolving Loans and Closing Date Revolving Commitments (other than as set forth herein or as are otherwise reasonably satisfactory acceptable to the Administrative Agent, );
(xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall shall, to the extent secured, be secured by the Security AgreementAgreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty Agreement and shall not be secured by any assets that do not constitute only the Collateral for securing the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, Obligations hereunder;
(xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans Commitment Increases, Additional/Replacement Revolving Commitments and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and Documents; and
(xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), that the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date maturity date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b2.01(c)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, Rate in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. On and after (ax) the Delayed Draw Termination Date or (y) solely in connection with an Incremental Term Loan incurred to consummate the ▇▇▇▇▇▇▇ Acquisition, the Tenth Amendment Effective Date, the Borrower may at any time and or from time to time time, by notice to the Administrative Agent (an “Incremental Term Loan Request”), request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches new commitments of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, which may be of the same Class as any outstanding Term Loans (an “Incremental Term Loan” and, collectivelyLoan Increase”) or a new Class of term loans (collectively with any Incremental Term Loan Increase, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing TestCommitments”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by forward any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Request to all Lenders, and any interested Lenders shall as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part ofsoon as practicable, and be added to, an existing Tranche of Term Loans, in any case so long as (but excluding any Incremental Term Loan Request for the following requirements are satisfied:
(i) the incurrence of Incremental Term Loans to consummate the ▇▇▇▇▇▇▇ Acquisition) within ten Business Days (or such shorter period as may be made pursuant agreed to by the Lender Representative) following receipt of such notice, provide the Borrower and the Administrative Agent a written offer to provide such Incremental Amendment shall have Term Loan (including portions thereof) with terms and provisions in accordance with this Section 2.17 (any such Lender, an “Increasing Lender”); provided that (i) other than in the same Borrower, case of any Incremental Term Loan Request for the same Maturity Date and the same Applicable Margins as the Tranche incurrence of Incremental Term Loans to which consummate the new Incremental Term Loans are being added;
▇▇▇▇▇▇▇ Acquisition, if no such offer is provided by a Lender within such 10 Business Day-period (or such shorter period as may be agreed to by the Lender Representative), such Lender shall be deemed to have declined to exercise such right of offer, (ii) the new Borrower shall be under no obligation to accept any such offer from such Lender and (iii) solely in the case of any Incremental Term Loans shall have Loan Request for the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount incurrence of each Scheduled Repayment applicable to such new Incremental Term Loans to be consummate the same ▇▇▇▇▇▇▇ Acquisition, unless otherwise agreed to in writing by Blackstone (on a proportionate basis) as is theretofore applicable to the Tranche to which in its sole discretion), such new Incremental Term Loans are being added(and the related Incremental Term Loan Commitments) shall only be provided by Blackstone and/or any Blackstone Designee. No Lender shall have any obligation, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new express or implied, to provide Incremental Term Loans, and notwithstanding anything any decision by a Lender to the contrary set forth in Section 2.09, such new provide Incremental Term Loans shall be added made in its sole discretion independently from any other Lender. Only the consent of each applicable Lender shall be required for it to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new provide Incremental Term Loans pursuant to this Section 2.01(b)) on a pro rata basis2.17. To the extent the provisions The Borrower may accept some or all of the preceding clause offered amounts or designate new lenders (iii) require that Incremental provided, in any event, such new lender is an Eligible Assignee), as additional Lenders making new hereunder in accordance with this Section 2.17 (the “Additional Lenders”, and together with the Increasing Lenders and the Lenders providing Incremental Term Loans add such incurred to consummate the ▇▇▇▇▇▇▇ Acquisition, the “Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest PeriodLenders”), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on Additional Lenders may provide all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence portion of such Incremental Term Loans. The Borrower shall have discretion to adjust the allocation of such Incremental Term Loan Commitments (other than Incremental Term Loan Commitments incurred to consummate the ▇▇▇▇▇▇▇ Acquisition) among the Increasing Lenders and the Additional Lenders.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may Representative may, on behalf of any Borrower, at any time and or from time to time after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request (i) one or more Lenders new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (ii) one or more Eligible Transferees who will become Lenders) to provide an increase increases in the amount of the Revolving Commitments (a “Revolving Commitment Increase”), one ) or more additional Tranches a new Class of Revolving Commitments (an “Additional/Replacement collectively with any Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectivelyCommitment Increase, the “Incremental Term Loans” NAI-1539971432v8 AMERICAS 126787728 114 Revolving Credit Commitments”, and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectivelyTerm Commitments, the “Incremental FacilitiesCommitments”) to Borrower and), subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount not to exceed the sum of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate greater of interest applicable to (1) $178,800,000 and (2) 100% of Consolidated Adjusted EBITDA for the Revolving Commitment Increase shall be most recently completed Test Period (calculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the same as amount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the rate of interest applicable to the Initial Revolving Loans, “Fixed Incremental Amount”) plus (B) unused line fees, fronting fees and letter of credit participation fees applicable to an unlimited amount (the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase“Incremental Incurrence-Based Amount”), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (Pro Forma Basis after giving effect to the incurrence of any such new Incremental Term Loans pursuant to Section 2.01(b)(assuming the full amount of any such Indebtedness in the form of a revolving credit facility is drawn) on a pro rata basis. To (without netting the extent the provisions cash proceeds of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add any borrowing under any such Incremental Term Loans to or Incremental Revolving Credit Commitment not promptly applied for the then outstanding Borrowings specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the Total Net Leverage Ratio does not exceed 4.50:1.00 as of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Periodthe most recently completed Test Period (calculated on a Pro Forma Basis) (this clause (B), which irregular interest periods shall be permitted notwithstanding anything the “Incremental Ratio Debt Basket”), plus (C) any voluntary prepayments and buybacks (limited to the contrary in this Agreement. All determinations by any the Administrative Agent actual amount of cash paid) of the LIBO Rate, in such circumstances pursuant to Initial Term Loans and the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, voluntary prepayments of the Revolving Loans (to the extent accompanied by permanent commitment reductions thereto), voluntary prepayments and buybacks (limited to the actual amount of cash paid) of any applicable other Term Loans, Revolving Loans or other Indebtedness, in each case, secured on a pari passu basis with the Initial Term Loans then outstanding (in the case of any prepayment of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) so long as:
as the relevant prepayment was not already included in this clause (iC), and payments utilizing the yank-a-bank provisions of the Credit Documents, in each case, prior to such time and other than any such voluntary prepayments (and commitment reductions) the Lenders with respect and buybacks to the relevant series extent financed with the proceeds of Term Loans and/or Commitments being extendedlong term Indebtedness (other than any revolving Indebtedness) or any Specified Equity Contribution (this clause (C), repriced or refinanced are offered the opportunity to participate “Prepayment Amount”) plus (D) in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount case of any Incremental Term Loans does not exceed Commitments or Incremental Revolving Credit Commitments that effectively extend the maturity date of any Facility, an amount equal to the portion of such Facility that will be replaced by such Incremental Term Commitments or Incremental Revolving Credit Commitments (this clause (D), the “Effective Extension Incremental Amount”) (the sum of (xA), (B), (C) and (D) being referred to herein as the “Incremental Cap”), whereupon Administrative Agent shall promptly deliver a copy of such request to each of the Lenders; provided that, for purposes of the foregoing, (I) the principal amount Borrower Representative may elect to use the Incremental Incurrence-Based Amount prior to the Fixed Incremental Amount, the Prepayment Amount and the Effective Extension Incremental Amount, and if the Fixed Incremental Amount, the Prepayment Amount and/or the Effective Extension Incremental Amount, on the one hand, and the Incremental Incurrence-Based Amount, on the other hand, are each available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected to use the Incremental Incurrence-Based Amount first and (II) the Incremental Incurrence-Based Amount will be calculated without regard to any incurrence of Indebtedness under the Fixed Incremental Amount, the Prepayment Amount and/or the Effective Extension Incremental Amount concurrently with the incurrence of any amounts in reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Incremental Commitments incurred other than under the Incremental Incurrence-Based Amount shall be automatically re-designated as incurred under the Incremental Incurrence-Based Amount if the Borrowers meet the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including ratio under the Incremental Incurrence-Based Amount on a pro forma basis at any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related time subsequent to the establishment and incurrence of such Incremental Term LoansCommitment (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount, the Effective Extension Incremental Amount, and/or the Prepayment Amount, as applicable, as of the date of such redesignation by the amount of such Indebtedness so redesignated).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) Borrower may at After the Closing Date has occurredAt any time and after the end of the Covenant Adjustment Period, the Borrower may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an Incremental Facility on exceed the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount available at the time such Incremental Term Loans are funded or Incremental Revolving Commitments are established (except as set forth in Section 1.07) from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the date of incurrence plus (y) case may be, in their sole discretion; provided, that each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Incremental Facility TestAdministrative Agent and, any Incurrence-Based Incremental Amount that may to the extent the same would be incurred thereunder on such daterequired for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (viwhich approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent (i.e.which approval shall not be unreasonably withheld, not conditioned or delayed)), (ii) the same as any existing Tranche of Incremental Term Loans, date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective, (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shall together with any then outstanding Initial Term Loans form a single Class of) Initial Term Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Initial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, unless the requirements of no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.15(c) are satisfied), which designation 2.21 and any election to do so shall be set forth in the sole discretion of such Lender.
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental 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 and/or Incremental Revolving Commitment of such Incremental Revolving Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental AmendmentTerm Loans and/or Incremental Revolving Commitments; provided, that:
(viiiI) if any (x) commitments to be incurred as a new Tranche of Incremental Term Loans, such Incremental make additional Initial Term Loans shall have the same terms as each other Tranche the Initial Term Loans, and shall form part of the same Class of Initial Term Loans as in effect immediately prior to the effectiveness of the relevant and (y) Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans Revolving Commitments shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date same terms as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans Class of Revolving Commitments (or, if more than one Class of Revolving Commitments is then outstanding, the Revolving Commitments with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest latest Revolving Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (IDate) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase Commitments,
(immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (EII) the Revolving Commitment Increase Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu equally and ratably in right of payment and security with the Initial Revolving Term Loans or, at the option of the Borrower, shall rank junior in right of security with the Initial Term Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Initial Term Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement) or shall be unsecured, (III) (A) the final maturity date of any such Other Incremental Term Loans, other than any Permitted Earlier Maturity Debt not to exceed at the time of incurrence the Permitted Earlier Maturity Debt Cap and Customary Bridge Financings, shall be no earlier than the Initial Term Loan Maturity Date and (B) except as to pricing, fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), any such Other Incremental Term Loans shall have (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long same terms as the Initial Term Loans or (y) such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise shall be reasonably satisfactory to the Administrative AgentAgent (it being understood that, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) that any term is added for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent benefit of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Other Incremental Term Loans, and notwithstanding anything no consent shall be required from Term Lenders to the contrary set forth in Section 2.09, extent that such new Incremental term is (a) also added for the benefit of the Term Loans shall be added to or (and form part ofb) each Borrowing of outstanding Term Loans of is only applicable after the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Initial Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.Maturity Date),
Appears in 1 contract
Sources: Credit Agreement (Enhabit, Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, from time to time after the Closing Date, by written notice to the Administrative Agent request the establishment of (a) one or more Lenders new term loan commitments (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a the “Revolving Commitment IncreaseNew Term Loan Commitments”), (b) one or more additional Tranches tranches of revolving credit commitments (the “Additional Revolving Credit Commitments”) and/or (c) one or more increases in the amount of the Revolving Credit Commitments (an each such increase, a “Additional/Replacement Revolving Commitment”) or Incremental Credit Commitment Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments established following the First Amendment Effective Date not in excess of the Incremental Facility Amount. Each such notice shall specify the date (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental FacilitiesIncreased Amount Date”) to on which the Borrower andproposes that the Incremental Commitments shall be effective, subject which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the terms and conditions contained in this Agreement and in Administrative Agent) after the relevant date on which such notice is delivered to Administrative Agent. The Borrower may seek Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request Commitments from existing Lenders or from by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lenderbank, (iii) each Incremental Facility shall be denominated in Dollars financial institution, other institutional lender or other Person that is an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt eligible assignee pursuant to Section 10.04(xxvii)(113.6(b) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)other Person being called an “Additional Lender”); provided, however, that the Administrative Agent (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, thatand, solely with respect to any syndicated Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Additional Lender’s providing any Incremental Term Loan denominated Commitments to the extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in Dollarsits sole discretion, if to provide an Incremental Commitment.
(b) Such Incremental Commitment shall become effective as of such Increased Amount Date; provided that (1) the Effective Yield for any such Incremental Term Loans exceeds representations and warranties set forth herein and in the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans other Credit Documentation shall be increased true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in accordance which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, with respect to any Incremental Commitments the requirements proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of “Applicable Margin”) so Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the difference between Borrower or any of its Affiliates have the Effective Yield with respect right to terminate its or their obligations under such new purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Term Loans Commitments (and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (Apursuant thereto) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other the Term B Loans, the Term B-1 Loans, the Original Revolving Credit Commitments and the Original Revolving Credit Loans, and the First Amendment Revolving Credit Commitments and the First Amendment Revolving Credit Loans and shall be secured only by the Security Agreement Collateral securing the Obligations; (3) no Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the Increased Amount Date); (4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction making of the relevant conditions set forth in this Agreementany Loans pursuant thereto; provided that, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of any Incremental Commitments pursuant the proceeds of which are used to this Section 2.15fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and each such Lender (with the consent Lenders providing the applicable Incremental Commitment, the absence of the Administrative Agent, each Issuing Bank and the Swingline Lender (a Default or Event of Default shall not to be unreasonably withheld or delayed) constitute a condition to the extent making of such consent, if any, would Incremental Commitments; (5) the Incremental Commitments and related Loans made pursuant thereto shall be required under Section 13.04(b) for an assignment of Loans effected pursuant to such Person) one or other Eligible Transferee which agrees to provide an Incremental Commitment more amendments (each, an “Incremental LenderAmendment”) shall execute and deliver to this Agreement and, as appropriate, the Administrative Agent an Incremental Amendment (which shall not require other Credit Documents, executed by the consent of any other Lender)Parent Guarantors, with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative AgentBorrower, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of and each Incremental AmendmentAdditional Lender providing such New Term Loan Commitments, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Additional Revolving Credit Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving NotesCredit Commitment Increase, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements applicable (each of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate recorded in the Register and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to shall be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect subject to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.in
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or, solely in connection with clause (ii) of the incurrence thereof shall not exceeddefinition of the term “Incremental Amount,” at the time any commitment relating thereto is entered into or, when taken together with any at the option of the Borrower, at the time of incurrence of Permitted Pari Passu Notesthe Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, Permitted Pari Passu Loans or Permitted Junior Debt pursuant as the case may be, in their own discretion; provided that each Incremental Revolving Facility Lender providing a commitment to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are requested to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Facility Loans and the Closing Date Revolving Commitmentsor (y) commitments to make revolving loans with pricing terms, andfinal maturity dates, for purposes of this Agreement and the participation in mandatory prepayments or commitment reductions and/or other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to terms different from the Initial Revolving Facility Loans (“Other Revolving Facility Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) the commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Facility Loans shall have been delivered the same terms as the Term B Loans or Initial Revolving Facility Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.20 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans will be established as a separate facility from the then existing Term Loans, shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Facility Loans incurred pursuant to clause (a) of this Section 2.20 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Facility Loans (provided that if such Other Revolving Facility Loans rank junior in right of security with the Initial Revolving Facility Loans, such Other Revolving Facility Loans will be established as a separate facility from the then existing Revolving Facility Loans, and shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Facility Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Facility Loans, there shall be no amortization and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) all fees required substantially similar terms as the Initial Revolving Facility Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.20 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the Repricing Effective Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Repricing Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted Eurocurrency Rate in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(iviii) Schedule 2.01 (A) such Other Revolving Facility Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Facility Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(ix) there shall be no obligor in respect of any Incremental Loans that is not a Loan Party, and, if such Incremental Loans are secured, shall only be secured by Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.09(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.20 and any such collateral and other documentation shall be deemed modified “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to reflect the revised Incremental Commitments of the affected Lenders be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.20 unless (i) on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, no Event of Default with respect to be unreasonably withheld, delayed or conditionedthe Borrower under Sections 7.01(b), (h) or (i) shall have occurred and be continuing and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to a given Incremental Amendment the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.20), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the scheduled amortization in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or the Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.20(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including any prepayment premium, penalties or have such other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.terms as shall be rea
Appears in 1 contract
Sources: First Lien Credit Agreement
Incremental Commitments. (ai) Borrower may at any time As of the Amendment No. 1 Effective Date:
(A) each Lender shall hold commitments in respect of the Revolving Loan Facility as set forth on Part B of Schedule 1.1A hereto and from time each Issuing Bank’s LC Commitment shall be as set forth on Part C of Schedule 1.1A hereto, in each case, on the terms and subject to time request one or more Lenders the conditions set forth below and in the Amended Credit Agreement;
(or one or more Eligible Transferees who will become B) each of the Lenders) , immediately prior to provide an increase in Revolving Commitments giving effect to this Amendment (a the “Revolving Commitment IncreaseExisting Lenders”), one or more additional Tranches shall be deemed to have assigned to each of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or the Incremental Term Loan Commitments (Lenders, and each of the Incremental Lenders shall be deemed to have assumed from each of the Existing Lenders, at the principal amount thereof, such Term interests in the Loans incurred in connection therewithoutstanding on the Amendment No. 1 Effective Date such that, each, an “after giving effect to each such deemed assignment and assumption of participations and to the Incremental Term Loan” and, collectivelyLenders becoming Lenders, the percentage of the aggregate outstanding Loans held by each Lender will equal such ▇▇▇▇▇▇’s Pro Rata Share of the Commitments;
(C) each Incremental Commitment shall be deemed, for all purposes, a “Commitment” under the Amended Credit Agreement and each Incremental Term Loans” andLoan shall be deemed, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitmentfor all purposes, each, an a “Loan”;
(D) after giving effect to the Incremental Facility” and collectivelyCommitments, the “LC Commitments of each Lender shall be reallocated such that the percentage LC Commitments of each Lender will equal such Lender’s Pro Rata Share of the Commitments;
(E) each Incremental Facilities”) Lender agrees to Borrower and, make the Incremental Commitments available under and subject to the terms and conditions contained in this of the Amended Credit Agreement as an increase to, and in on identical terms as the relevant Commitments (as amended hereby) and shall become an “Issuing Bank”, “Secured Party” and a “Lender” under the Amended Credit Agreement with respect to the Incremental Amendment, provide commitments and/or make Loans pursuant Commitments and all matters relating thereto; it being understood and
(F) in accordance with Section 2.11 of the Amended Credit Agreement, each of the Existing Lenders will automatically and agreedwithout further act be deemed to have assigned to each Incremental Lender, howeverand each such Incremental Lender will automatically and without further act be deemed to have assumed, that (i) no a portion of such Existing Lender’s participations in outstanding Letters of Credit, such that, after giving effect to each such deemed assignment and assumption of participations and to the Incremental Lenders becoming Lenders, the percentage of the aggregate outstanding participations in Letters of Credit by each Lender shall be obligated to provide an Incremental Facility as a result will equal such ▇▇▇▇▇▇’s Pro Rata Share of any such request by Borrower, the Commitments.
(ii) any Lender Each Incremental Lender:
(including any Eligible Transferee who will become A) confirms that it received a Lender) may so copy of this Amendment, the Existing Credit Agreement and such other documents and information it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and to provide an its Incremental Facility without Commitment hereunder and make the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility Loans with respect thereto on the date basis of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) which it has made such analysis and decision independently and without reliance on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, Agent or any Tranche of the Incremental Term Loan Commitments being provided thereunder Lender;
(which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(cB) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which confirms that it is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely sophisticated with respect to any syndicated Incremental Term Loan denominated decisions to make loans similar to those contemplated to be made hereunder and that it is experienced in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as making loans of such date type;
(in accordance with C) appoints, authorizes and instructs the requirements of Administrative Agent to take such action as agent on its behalf and to exercise such powers under the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans Amended Credit Agreement and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (Loan Documents or any other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional instrument or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans document furnished pursuant hereto or thereto as are otherwise reasonably satisfactory delegated to the Administrative Agent, (ix) by the terms thereof, together with such powers as are reasonably incidental thereto; and
(D) acknowledges and provisions of any Revolving Commitment Increase agrees that it shall be identical to an “Issuing Bank”, “Secured Party” and “Lender” under, and for all purposes of, the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Amended Credit Agreement and the other Credit Loan Documents, be subject to and bound by the term thereof and perform all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate obligations of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date all the rights of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(biii) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the The Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) hereby consents to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for Lenders’ providing the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and or from time to time time, by notice to the Administrative Agent (an “Incremental Loan Request”), request (A) one or more Lenders new commitments of Term Loans which may be of the same Class as any outstanding Term Loans (an “Incremental Term Loan Increase”) or a new class of term loans (collectively with any Incremental Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more Eligible Transferees who will become Lenders) to provide an increase increases in the amount of the Revolving Credit Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or and collectively with any Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectivelyCommitments, the “Incremental Term Loans” andCommitments”), collectively with whereupon the Administrative Agent shall promptly deliver a copy to each of the Appropriate Lenders. No Lender shall have any Revolving Commitment Increase obligation, express or implied, to provide Incremental Commitments, and any Additional/Replacement Revolving Commitmentdecision by a Lender to provide Incremental Commitments shall be made in its sole discretion independently from any other Lender. The Borrower agrees that it will not incur any Incremental Commitments without first providing to the existing Lenders the opportunity to provide such Incremental Commitments on substantially the same terms and conditions (including with respect to pricing terms) prior to offering the opportunity to provide such Incremental Commitments to any other Person on such terms and conditions; provided that the existing Lenders (or any of them) must elect to accept such opportunity to provide such proposed Incremental Commitments within five (5) Business Days of receipt of such offer or else be deemed to have declined the opportunity to provide such Incremental Commitments and the Borrower shall then have the right to have another Lender or an Additional Lender other than the existing Lenders provide such Incremental Commitments (subject only to any such Additional Lender being an Eligible Assignee). Lenders may elect or decline, eachin their sole discretion, an “to participate in the provision of any such Incremental Facility” Commitments. Only the consent of each applicable Lender shall be required for it to provide Incremental Commitments and collectively, Incremental Loans pursuant to this Section 2.18. The Borrower may accept some or all of the “Incremental Facilities”) to Borrower andoffered amounts or, subject to the terms and conditions contained right of first refusal set forth above, designate new lenders (provided, in this Agreement and in the relevant Incremental Amendmentany event, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide such new lender is an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentAssignee), as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (Additional Lenders hereunder in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.152.18, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld which Additional Lenders may provide all or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy portion of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Commitments and/or Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement
Incremental Commitments. (a) Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”)Each Incremental Lender, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or effective upon the Incremental Term Loan Commitments (such Term Loans incurred in connection therewithFacility Effective Date, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, hereby agrees that (i) no in respect of each Incremental Lender shall be obligated that is a Lender immediately prior to provide an the Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term LoansEffective Date, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as Lender's Commitment in effect immediately prior to the effectiveness Incremental Facility Effective Date shall be increased by the amount set forth next to such Lender's name on Schedule I hereto and (ii) in respect of each Incremental Lender that is not a Lender immediately prior to the Incremental Facility Effective Date (each, an “Augmenting Lender”), such Augmenting Lender's Commitment shall be the amount set forth next to such Augmenting Lender's name on Schedule I hereto. All such Incremental Commitments shall constitute “Commitments” and all Incremental Lenders shall constitute “Lenders”, in each case for all purposes of the relevant Credit Agreement and the other Loan Documents.
(b) From and after the Incremental AmendmentFacility Effective Date, except as each Augmenting Lender shall be a party to purpose (which is the Credit Agreement, entitled to all rights, powers and privileges, and subject to all obligations, of a Lender thereunder, including without limitation (i) the requirements right to receive all payments made by the Borrowers in respect of the preceding clause Loans made by such Augmenting Lender, whether on account of principal, interest, fees, indemnities in respect of claims arising after the Incremental Facility Effective Date, increased costs, additional amounts or otherwise, (vi)ii) the right to vote and optional prepayment provisions to instruct the Administrative Agent under the Credit Agreement according to its Applicable Percentage, (iii) the right to set‑off and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders appropriate and apply deposits of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that Borrowers as set forth in the Credit Agreement and (Iiv) the maturity right to receive notices, requests, demands and amortization other communications.
(c) Each Augmenting Lender (i) confirms that it has received a copy of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have each Loan Document (a) a Maturity Date of no earlier other than the Term Loans Latest Maturity Date as Fee Letter), together with copies of the date such Indebtedness was incurred most recent financial statements delivered by El Paso pursuant to Sections 5.04(a) and (b) of the Credit Agreement and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assumption Agreement and to become a Weighted Average Life to Maturity of no less than Lender under the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term LoansCredit Agreement, (IIii) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from agrees that applicable to the then outstanding Tranches of Term Loansit will, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans independently and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to reliance upon the Administrative Agent, the Syndication Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, (ixiii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender, (v) represents and provisions of any Revolving Commitment Increase shall be identical warrants to the Initial Revolving Loans Administrative Agent that it has duly executed and delivered this Assumption Agreement and that the Closing Date Revolving Commitmentsexecution, and, for purposes delivery and performance by such Augmenting Lender of this Assumption Agreement have been duly authorized by all necessary action (corporate or otherwise) and (vi) agrees that it will deliver to the Administrative Agent an Administrative Questionnaire in the form of Exhibit A to the Credit Agreement.
(d) In order to effectuate the increase in the Total Commitment contemplated hereby, each of the parties hereto hereby agrees that, on the Incremental Facility Effective Date, each Incremental Lender shall purchase by assignment from the other Credit Documents, all Revolving Loans made under Lenders (and such other Lenders shall assign to the Revolving Commitment Increase shall be deemed to be Initial Revolving Incremental Lenders) such portion of the outstanding Loans (including, without limitation, any Loans deemed made pursuant to Section 2.02(f) of the following: (A) the rate of interest applicable Credit Agreement), if any, owing to the Revolving Commitment Increase them as shall be designated by the same as the rate of interest applicable to the Initial Revolving LoansAdministrative Agent, (B) unused line feessuch that, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to all such Revolving Commitment Increasespurchases and assignments, the Pro Rata outstanding Loans owing to each Lender shall equal such Lender's Applicable Percentage of the Revolving Commitments aggregate amount of each Lender may Loans owing to all Lenders. Any prepayment described in this paragraph (d) shall be adjusted subject to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche Section 2.14 of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis but shall otherwise be without premium or penalty. In connection with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Assumption Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent hereby waives the processing and each such Lender (with the consent recordation fee of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees $3,500 otherwise required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)10.04(b) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Credit Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Incremental Facility Assumption Agreement (El Paso Electric Co /Tx/)
Incremental Commitments. (a) The Borrower may at any time and may, from time to time after the Closing Date, by written notice to the Administrative Agent request the establishment of (i) one or more Lenders new term loan commitments (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a the “Revolving Commitment IncreaseNew Term Loan Commitments”), (ii) one or more additional Tranches tranches of revolving credit commitments (the “Additional Revolving Credit Commitments”) and/or (iii) one or more increases in the amount of the Revolving Credit Commitments (an each such increase, a “Additional/Replacement Revolving Commitment”) or Incremental Credit Commitment Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments established following the First Amendment Effective Date not in excess of the Incremental Facility Amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may seek Incremental Commitments from existing Lenders or from by any other bank, financial institution, other institutional lender or other Person that is an eligible assignee pursuant to Section 13.6(b) (any such other Person being called an “Additional Lender”); provided, that the Administrative Agent (and, solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Additional Lender’s providing any Incremental Commitments to the extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment.
(b) Such Incremental Commitment shall become effective as of such Increased Amount Date; provided that (1) the representations and warranties set forth herein and in the other Credit Documentation shall be true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Commitments (and the Loans made pursuant thereto) shall be secured on a pari passu basis with the Term B Loans, the Revolving Credit Commitments and the Revolving Credit Loans incurred in connection therewithand shall be secured only by the Collateral securing the Obligations; (3) no Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the Increased Amount Date); (4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and to the making of any Loans pursuant thereto; provided that, with respect to any Incremental Commitments the proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the absence of a Default or Event of Default shall not constitute a condition to the making of such Incremental Commitments; (5) the Incremental Commitments and related Loans made pursuant thereto shall be effected pursuant to one or more amendments (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental FacilitiesAmendment”) to Borrower this Agreement and, as appropriate, the other Credit Documents, executed by the Parent Guarantors, the Borrower, each Lender and each Additional Lender providing such New Term Loan Commitments, Additional Revolving Credit Commitments or Revolving Credit Commitment Increase, as applicable (each of which shall be recorded in the Register and shall be subject to the requirements set forth in Section 5.4(d)), and the Administrative Agent; and (6) the Borrower shall make any payments required pursuant to Section 2.12 in connection with the Incremental Commitments, as applicable. Any New Term Loans made on an Increased Amount Date that have terms and conditions contained in this Agreement and in provisions that differ from Term Loans outstanding on the relevant Incremental Amendment, provide commitments and/or make date on which such New Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender are made shall be obligated to provide an Incremental Facility designated as a result separate Class of any such request by BorrowerTerm Loans for all purposes of this Agreement. Each of the parties hereto hereby agrees that each Incremental Amendment may, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.17.
(c) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (i) the Maturity Date of any New Term Loans shall not be earlier than the then-existing Latest Maturity Date with respect to any Existing Class of Term Loans, (ii) any New Term Loans shall not have a shorter Weighted Average Life than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (iii) each Incremental Facility if the Initial Yield on any New Term Loans exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Class of Term Loans shall automatically be denominated in Dollars or an Alternative Currencyincreased by the Yield Differential, effective upon the making of the New Term Loans and (iv) any New Term Loans shall otherwise have the amount same terms and conditions of the Term Loans then in effect or such other terms and conditions reasonably satisfactory to the Administrative Agent. On any Increased Amount Date on which any New Term Loan Commitments of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000Class are effective, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrenceforegoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Class, and (ii) each New Term Loan Lender of any Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto.
(d) Notwithstanding the foregoing, without the prior written consent of the Required Lenders or the Required Revolving Credit Lenders, (A) any Revolving Credit Commitment Increase shall be on the exact same terms (including with respect to commitment reductions and interest rates) as the Fourth Amendment Extended Revolving Credit Commitments, except for such differences (including with respect to maturity date) that are expressly permitted by the following subclause (B), and (B) (i) the Maturity Date of any Additional Revolving Credit Commitments shall not be earlier than, and shall not require mandatory commitment reduction (except ratably with the Revolving Credit Commitments) prior to, the then-Based Incremental Facility Testexisting Latest Maturity Date with respect to the latest maturing Existing Class of Revolving Credit Loans, (ii) if the Initial Yield on any Additional Revolving Credit Commitments (and related Revolving Credit Loans) that expire on or before the one-year anniversary of the Latest Maturity Date with respect to the latest maturing Existing Class (or Classes) of Revolving Credit Commitments (and, in each case, any Incurrence-Based Incremental Amount related Revolving Credit Loans) (such expiration of Additional Revolving Credit Commitments determined without giving effect to contingencies that would cause such expiration to be earlier than otherwise stated unless and until such contingency occurs), exceeds the Initial Yield then in effect for any such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) by more than 50 basis points, then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Revolving Credit Commitments (and related Revolving Credit Loans) shall automatically be increased by the Yield Differential, effective upon the effectiveness of such Additional Revolving Credit Commitments, (iii) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Revolving Credit Loans under any Additional Revolving Credit Commitments shall be made on a pro rata basis with any borrowings and repayments of the Revolving Credit Loans then in effect (the mechanics for which may be incurred thereunder on implemented through the applicable Incremental Amendment and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Loans then in effect) and (iv) any Additional Revolving Credit Commitments shall otherwise have the same terms and conditions of the Revolving Credit Commitments then in effect or such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with other terms and conditions reasonably satisfactory to the Administrative Agent, including, for the avoidance of doubt any Tranche “MFN” protection applicable to such Additional Revolving Credit Commitments.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may, with the consent of the Borrower (not to be unreasonably withheld), take any and all action as may be reasonably necessary to ensure that all New Term Loans that, pursuant to the applicable Incremental Term Loan Commitments being provided thereunder (which Tranche shall Amendment, are to be a new Tranche (i.e., not of the same as any existing Tranche Class of Incremental an Existing Class of Term Loans, Incremental when originally made, are included in each Borrowing of such Existing Class of Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBOR Term Loans to be converted into a Borrowing of Term Loans that are ABR Loans on the date the applicable New Term Loan Commitments is made, or other by allocating a portion of each such New Term Loan to each outstanding Borrowing of LIBOR Term Loans on a pro rata basis. Any conversion of Borrowing of LIBOR Term Loans to Term Loans that are ABR Loans required by the preceding sentence shall be subject to Section 2.12. If any New Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBOR Term Loans), unless then the requirements of Section 2.15(c) are satisfied), which designation interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Amendment. In addition, (viiii) if to be incurred as a new Tranche of Incremental the extent any New Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.5(b) required to be made after the making of such Incremental New Term Loans shall have be ratably increased by the same terms as each other Tranche aggregate principal amount of such New Term Loans as and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation.
(f) Upon each Revolving Credit Commitment Increase pursuant to this Section, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect immediately to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the relevant Incremental Amendmentproceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments accompanied by accrued interest on a ratable basis with the other Tranches of Term Revolving Credit Loans (unless the holders of the Incremental Term Loans of being prepaid and any Tranche agree to take a lesser share of costs incurred by any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (Lender in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall promptly notify each Lender as not apply to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretosentence.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an Incremental Facility on exceed in the date of aggregate the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the date of incurrence plus (y) case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender and Incremental Term Lender shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent (which approval shall not be unreasonably withheld) unless, in the case of any Incremental Facility TestTerm Lender, any Incurrence-Based such Incremental Amount that may be incurred thereunder on such dateTerm Lender is a Lender, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested, (ii) the date on which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, such Incremental Term Loan Commitments or other Term Loans), unless and/or Incremental Revolving Facility Commitments are requested to become effective (the requirements of Section 2.15(c“Increased Amount Date”) are satisfied), which designation shall be set forth and (iii) in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche case of Incremental Term LoansLoan Commitments, whether such Incremental Term Loan Commitments are to be Term B Loan Commitments to make Term B Loans shall have or commitments to make term loans with pricing, Yield, maturity date and/or amortization terms different from the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term B Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding “Other Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have been delivered (x) the same terms as the Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, provided that the Yield in respect of any Other Term Loans secured on a pari passu basis with the Term B Loans made on or prior to the date that is eighteen (x18) all fees required to be paid months after the Fifth Amendment Effective Date shall not exceed 0.50% or more above the Yield in connection therewith at respect of the time Term B Loans or, if it does so exceed 0.50% or more of such Yield in respect of the Term B Loans, the Applicable Margin in respect of the Term B Loans shall be increased so that the Yield in respect of such Other Term Loans is not greater than 0.50% above the Yield in respect of the Term B Loans, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans and (iv) from and after the effectiveness of the each Incremental Assumption Agreement, the associated Incremental Revolving Facility Commitments shall have been paid thereafter be Revolving Facility Commitments. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (including, without limitation, any agreed upon upfront or arrangement fees owing but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 10.08(e). 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 extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.20 unless, as subject to Section 1.04: (i) on the case may bedate of such effectiveness, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not shall have received a certificate to be unreasonably withheldthat effect dated such date and executed by a Responsible Officer of the Borrower, delayed or conditioned)provided that in the event that thecase of any Incremental Limited Condition Term Loan Commitments are used to finance a Permitted Business Acquisition, the parties condition regarding the accuracy of representations and warranties set forth in paragraph (b) of Section 4.01 shall be limited to customary “specified representations” and those representations included in the related acquisition agreement that are material to the interests of the Lenders and only to the extent that the Borrower has the right to terminate its obligations under such acquisition agreement as a given result of a breach of such representations, and the condition regarding the absence of a Default or Event of Default required by paragraph (c) of Section 4.01 shall be made by the Borrower at the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Amendment Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably require to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, and be added to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments, the Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date thereunder and the same Applicable Margins application of the proceeds therefrom as if made and applied on such date.
(d) Each of the Tranche of Term Loans parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to which the new ensure that (i) all Incremental Term Loans (other than Other Term Loans) in the form of additional Term B Loans, when originally made, are being added;
included in each Borrowing of outstanding Term B Loans on a pro rata basis, and (ii) the new all Revolving Facility Loans in respect of Incremental Term Revolving Facility Commitments, when originally made, are included in each Borrowing of outstanding Revolving Facility Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate pro rata basis) . The Borrower agrees that Section 2.16 shall apply to any conversion of Eurocurrency Loans or Term Benchmark Loans, as is theretofore applicable applicable, to ABR Loans reasonably required by the Tranche Lenders to which such new Incremental Term Loans are being added, thereby increasing effect the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); andforegoing.
(iiie) on the date of the making of such new Incremental Term Loans, and notwithstanding Notwithstanding anything to the contrary set forth in this Agreement (including Section 2.09, such new Incremental Term Loans 2.18(c) (which provisions shall not be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans clauses (e) through (l) of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.this
Appears in 1 contract
Sources: Amendment to Credit Agreement (Anywhere Real Estate Group LLC)
Incremental Commitments. (a) The Borrower may Representative may, on behalf of any Borrower, at any time and or from time to time after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request (A) one or more Lenders new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more Eligible Transferees who will become Lenders) to provide an increase increases in the amount of the Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectivelyTerm Commitments, the “Incremental FacilitiesCommitments”) to Borrower and), subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount not to exceed the sum of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate greater of interest applicable to (1) $63,000,000 and (2) 100% of Consolidated Adjusted EBITDA for the Revolving Commitment Increase shall be most recently completed Test Period (calculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the same as amount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the rate of interest applicable to the Initial Revolving Loans, “Fixed Incremental Amount”) plus (B) unused line fees, fronting fees and letter of credit participation fees applicable to an unlimited amount (the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase“Incremental Incurrence-Based Amount”), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (Pro Forma Basis after giving effect to the incurrence of any such new Incremental Term Loans pursuant to Section 2.01(b)(assuming the full amount of any such Indebtedness in the form of a revolving credit facility is drawn) on a pro rata basis. To (without netting the extent the provisions cash proceeds of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add any borrowing under any such Incremental Term Loans to or Revolving Commitment Increase not promptly applied for the then outstanding Borrowings specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the Total Net Leverage Ratio does not exceed 4.25:1.00 as of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Periodthe most recently completed Test Period (calculated on a Pro Forma Basis) (this clause (B), which irregular interest periods shall be permitted notwithstanding anything the “Incremental Ratio Debt Basket”), plus (C) any voluntary prepayments and buybacks (limited to the contrary in this Agreement. All determinations by any the Administrative Agent actual amount of cash paid) of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Initial Term Loans then outstanding so long as:
(i) and the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed and voluntary prepayments of the Revolving Loans (to the extent accompanied by permanent commitment reductions thereto), payments utilizing the yank-a-bank provisions of the Credit Documents, in each case prior to such time other than any such voluntary prepayments (and commitment reductions), and buybacks to the extent financed with the proceeds of long term Indebtedness (other than any revolving Indebtedness) or any Specified Equity Contribution (this clause (C), the “Prepayment Amount”) (the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinancedA), (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancingB), and (zC) fees and expenses being referred to herein as the “Incremental Cap”), whereupon Administrative Agent shall promptly deliver a copy of such request to each of the Lenders; provided For purposes of the foregoing, (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar feesI) related the Borrower Representative may elect to use the Incremental Incurrence-Based Amount prior to the establishment Fixed Incremental Amount and the Prepayment Amount, and if the Fixed Incremental Amount and/or the Prepayment Amount, on the one hand, and the Incremental Incurrence-Based Amount, on the other hand, are each available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected to use the Incremental Incurrence-Based Amount first and (II) the Incremental Incurrence-Based Amount will be calculated without regard to any incurrence of Indebtedness under the Fixed Incremental Amount and/or Prepayment Amount concurrently with the incurrence of any amounts in reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Incremental Credit Facilities incurred other than under the Incremental Incurrence-Based Amount may be re-designated at any time, as the Borrower Representative may elect from time to time, as incurred under the Incremental Incurrence-Based Amount if the Borrowers meet the applicable ratio under the Incremental Incurrence-Based Amount at such time on a pro forma basis, at any time subsequent to the incurrence of such Incremental Term Loans.Credit Facility by written notice to the Administrative Agent on such date. (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount and/or the Prepayment Amount, as applicable, as of the date of such redesignation by the amount of such Indebtedness so redesignated). NAI-1537241654v2
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) After the Closing Date has occurred, any Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans incurred are funded or Incremental Revolving Facility Commitments are established (except as set forth in connection therewith, each, an “clause (C) of the third paragraph under Section 6.01) from one or more Incremental Term Loan” andLenders and/or Incremental Revolving Facility Lenders (which, collectivelyin each case, the “Incremental Term Loans” and, collectively with may include any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; existing Lender (it being understood and agreed, however, that (i) no Lender shall be obligated to provide an any Incremental Term Loans or Incremental Revolving Facility Commitments unless it shall have consented thereto), but shall be required to be persons which would qualify as assignees of a result of any Lender in accordance with Section 9.04) willing to provide such request by BorrowerIncremental Term Loans and/or Incremental Revolving Facility Commitments, (ii) any Lender (including any Eligible Transferee who will become a Lender) as the case may so provide an Incremental Facility without the consent of any other Lenderbe, (iii) in their sole discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be denominated in Dollars subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Bank (which approvals shall not be unreasonably withheld, conditioned or an Alternative Currency, delayed). Such notice shall set forth (ivi) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of the Dollar Equivalent of $5,000,000 and a new Tranche minimum amount of the Dollar Equivalent of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (i.e., not ii) the same as any existing Tranche of Incremental Term Loans, date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shall together with any then outstanding Initial Euro Term Loans or other Tranche B-1 Dollar Term Loans, as applicable, form a single Class of) Initial Euro Term Loans or Tranche B-1 Dollar Term Loans, as applicable, or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Initial Term B Loans (“Other Incremental Term Loans”), unless .
(b) The applicable Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the requirements Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of Section 2.15(c) are satisfied), which designation such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall be set forth in specify the terms of the applicable Incremental Amendment, Term Loans and/or Incremental Revolving Facility Commitments; provided that:
(viiii) if any (x) commitments to be incurred as a new Tranche of Incremental make additional Initial Term Loans, such Incremental Term B Loans shall have the same terms as each other Tranche of the Initialapplicable Term Loans as in effect immediately prior to the effectiveness B Loans, and shall form part of the relevant same Class of Initialthe applicable Term B Loans and (y) Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans Revolving Facility Commitments shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date same terms as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest latest Revolving Facility Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (IDate) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank equally and ratably in right of security with the Initial Term B Loans or, at the option of the applicable Borrower, shall rank junior in right of security with the Initial Term B Loans (provided that, if such Other Incremental Term Loans rank junior in right of security with the Initial Term B Loans, such Other Incremental Term Loans shall be subject to the Collateral Trust Agreement or any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Administrative Agent) to give effect to such security interest and, for the avoidance of doubt, shall not be subject to clause (v) below),
(iii) (x) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans (other than with respect to (I) any Other Incremental Term Loans with amortization in excess of 1% and less than or equal to 10% per year that is marketed principally to regulated commercial banks (as determined by the Parent), (II) Other Incremental Term Loans in effect an amount not to exceed 50% of Adjusted Consolidated EBITDA for the most recently ended Test Period for which financial statements of Parent have been delivered (or were required to be delivered) under Section 5.04, and (III) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (iii))), (y) no Incremental Facility shall mature on the effective date of the Revolving Commitment Increase (immediately or prior to the establishment latest Revolving Facility Maturity Date and (z) except as to pricing, fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the applicable Borrower and the Incremental Term Lenders in their sole discretion), such Revolving Commitment IncreaseOther Incremental Term Loans shall have (1) the same terms as the Initial Term B Loans or (2) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any term is added for the benefit of any Other Incremental Term Loans, no consent shall be required from Term Lenders to the extent that such term is (a) also added for the benefit of the Term Loans or (b) is only applicable after the maturity of the Term Loan Facility),
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans with the longest remaining Weighted Average Life to Maturity (other than with respect to (I) any Other Incremental Term Loans with amortization in excess of 1% and less than or equal to 10% per year that is marketed principally to regulated commercial banks (as determined by the Parent), (EII) Other Incremental Term Loans in an amount not to exceed 50% of Adjusted Consolidated EBITDA for the most recently ended Test Period for which financial statements of Parent have been delivered (or were required to be delivered) under Section 5.04, and (III) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (iv))),
(v) with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the applicable Borrower, except that the All-in Yield in respect of any such Other Incremental Term Loan that is Other First Lien Debt and incurred prior to the date that is eighteen months after the Closing Date may exceed the All-in Yield in respect of the Initial Term Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “floor” as provided in the following proviso) applicable to such Initial Term Loans shall be increased such that after giving effect to such Revolving Commitment Increasesincrease, the Pro Rata Percentage Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Revolving Commitments Term Yield Differential is attributable to a higher “floor” being applicable to such Other Incremental Term Loans, such floor shall only be included in the calculation of each Lender may be adjusted to give effect the Term Yield Differential to the total Revolving Commitment as increased by extent such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier floor is greater than the then latest maturing Tranche Eurocurrency Rate in effect for an Interest Period of outstanding Revolving Loansthree months’ duration at such time, (xi) any Tranche of and, with respect to such excess, the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions “floor” applicable to the existing Revolving outstanding Initial Term Loans shall be increased to an amount not to exceed the “floor” applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Initial Term Loans then outstanding,
(vi) such Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Term B Loans in any mandatory prepayment hereunder,
(vii) there shall be no borrower (other than a Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, Incremental Revolving Facility Commitments,
(xiiviii) all Other Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and Facility Commitments shall not be secured by any assets that do not constitute Collateral for asset of Parent or its Subsidiaries other than the outstanding Loans or Collateral; and
(ix) the Parent shall be guaranteed by in Pro Forma Compliance with the Financial Covenants (if then applicable). Each party hereto hereby agrees that, upon the effectiveness of any guarantors that are not Credit PartiesIncremental Assumption Agreement, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject this Agreement shall be amended to the satisfaction extent (but only to the extent) necessary to reflect the existence and terms of the relevant conditions set forth in this Agreement, make Incremental Term Loan Commitments and/or Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment Facility Commitments evidenced thereby as provided for in Section 2.01(c) (with respect 9.08(e). Any amendment to Incremental Term Loans) this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and applicable Incremental Amendment (with respect to Incremental Revolving Loans) any such collateral and such Loans other documentation shall thereafter be deemed to “Loan Documents” hereunder and may be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, memorialized in writing by the Administrative Agent and each such Lender (with the Parent’s consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or delayedIncremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) no Default or Event of Default shall exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Limited Condition Acquisition, to the extent the Incremental Term Lenders participating in such consenttranche of Incremental Term Loans agree, if any, would be required under Section 13.04(bthe foregoing clause (i) for an assignment and clause (ix) of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment the preceding clause (each, an “Incremental Lender”b) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith tested at the time of the execution of the acquisition agreement related to such effectiveness Limited Condition Acquisition (provided, that such Incremental Term Lenders shall have been paid not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loans); (including, without limitation, any agreed upon upfront or arrangement fees owing to ii) the Administrative Agent to representations and warranties of the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions Borrowers set forth in this Section 2.15 Agreement shall be true and correct in all material respects (other than to the extent qualified by materiality or “Material Adverse Effect”, in which case, such representations and warranties shall be true and correct); provided that, in the event that the tranche of Incremental Term Loans is used to finance a Limited Condition Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (ii) shall be limited to the Specified Representations and those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of the Lenders and only to the extent that the Parent or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a result of a failure of such representations to be accurate; and (iii) the Administrative Agent shall have been satisfiedreceived documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, Assumption Agreement.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and at such time, all action as may be reasonably necessary to ensure that (i) Schedule 2.01 shall be deemed modified to reflect the revised all Incremental Commitments Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the affected Lenders outstanding applicable Class of Term Loans on a pro rata basis, and (ii) to the extent requested by any all Revolving Facility Loans in respect of Incremental LenderRevolving Facility Commitments, Term Notes or Revolving Noteswhen originally made, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be are included in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes Class of the various outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Parent agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term SOFR Loans add such Incremental Term or Eurocurrency Rate Loans to the then outstanding Borrowings of LIBO Rate ABR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations reasonably required by any the Administrative Agent of to effect the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”)time, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or establish Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Pari Passu NotesAcquisition, Permitted Pari Passu Loans New Project or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such dateany other acquisition or similar Investment that is permitted by this Agreement, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus the definitive agreement with respect to such Permitted Acquisition, New Project, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (ywhich may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided that each Incremental Term Lender and each Incremental Revolving Facility Lender providing a commitment shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent (and, solely in the case of Incremental Revolving Facility TestLenders, any Incurrence-Based the Issuing Banks), to the extent the same would be required for an assignment under Section 9.04 (which approvals shall not be unreasonably withheld) unless such Incremental Amount that may be incurred thereunder on Term Lender is an existing Lender or such date, Incremental Revolving Facility Lender is an existing Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder established (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) [reserved] and (iv) in the terms and provisions case of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Incremental Term Loan Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed whether such Incremental Term Loan Commitments are to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the commitments to make term loans with terms identical to Term A Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving A Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, The Borrower, the Administrative Agent (if applicable) and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term A Loans and/or any Incremental Revolving Facility Commitments shall have been delivered the same terms as the Term A Loans or the Revolving Facility Commitments to make Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Liens on the Collateral securing the Term A Loans,
(iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term A Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the Administrative Agentother clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) all fees required substantially similar terms as the Term A Loans or (y) such other terms (including as to guarantees and collateral but excluding covenants or other provisions applicable only to periods after the Latest Maturity Date then in effect) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent (it being understood that, to the extent it served any financial maintenance covenant is added for the benefit of any Other Term Loan, no consent shall be required from the Administrative Agent or any Lender if such financial maintenance covenant is also added for the benefit of all Facilities then outstanding),
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term A Loans,
(v) the Incremental Revolving Facility Commitments and Incremental Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Liens on the Collateral securing the Initial Revolving Loans,
(vi) except as to discounts and fees (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Incremental Revolving Facility Commitments and Incremental Revolving Loans shall have the same terms as the arranger for Initial Revolving Loans,
(vii) [reserved];
(viii) (A) such Incremental Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Incremental Commitments), Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) all any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term A Loans in any mandatory prepayment hereunder; and
(ix) (A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) there shall be no assets securing any Incremental Term Loan, Incremental Revolving Loan or Incremental Commitment Requirements are satisfiedthat do not constitute Collateral. Each party hereto hereby agrees that, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to upon the effectiveness of each any Incremental AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and at terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such time, (i) Schedule 2.01 collateral and other documentation shall be deemed modified to reflect “Loan Documents” hereunder and may be memorialized in writing by the revised Incremental Commitments of Administrative Agent and the affected Lenders Borrower and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower (not to be unreasonably withheldor, delayed if such Incremental Term Loan Commitment or conditionedIncremental Revolving Facility Commitment is established for financing any Permitted Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01 (b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom) and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title date-down and modification endorsements, which, in the case of such amendments and title date-down and modification endorsements, may be delivered on a given post-closing basis to the extent permitted by the applicable Incremental Amendment Assumption Agreement) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part of, and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments, when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms, and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any prepayment premiumother terms that would affect the rights or duties of any Issuing Bank, penalties or other call protection) related such terms as shall be reasonably satisfactory to such extensionIssuing Bank, repricing (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or refinancinga less than pro rata basis (but not greater than a pro rata basis) than the Initial Revolving Loans in any voluntary or mandatory prepayment or commitment reduction hereunder and (vi) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term A Loans in any mandatory prepayment hereunder. Upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). 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. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and (z) fees and expenses (with the consent of each Issuing Bank, participations in Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related upon effectiveness of such Extended Revolving Facility Commitment or upon or prior to the establishment maturity date for any Class of Revolving Facility Commitments.
(g) Upon the effectiveness of any such Extension, the applicable Extending Lender’s Term Loan will be automatically designated an Extended Term Loan and/or such Extending Lender’s Revolving Facility Commitment will be automatically designated an Extended Revolving Facility Commitment. For purposes of this Agreement and incurrence of the other Loan Documents, (i) if such Incremental Extending Lender is extending a Term Loans.Loan
Appears in 1 contract
Sources: Credit Agreement (Cerence Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of initial incurrence of the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility on the date of the incurrence thereof Commitment shall not exceedbe subject, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction extent the same would be required for an assignment under Section 9.04, to the approval of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, delayed or conditioned). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are requested to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) the commitments to make term loans with terms identical to 2021 Term Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental 2021 Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional 2021 Term Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the 2021 Term Loans or Initial Revolving Loans, respectively, (ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the Administrative Agentoption of the Borrower, junior in right of security with the Term Loans and Initial Revolving Loans (provided, that if such Other Term Loans rank junior (x) all fees required in right of security with the Term Loans and Initial Revolving Loans, such Other Term 114 Doc#: US1:15347125v11 Loans shall be subject to a Permitted Junior Intercreditor Agreement and (y) in right of payment with the Term Loans and Initial Revolving Loans, such Other Term Loans shall be paid in connection therewith subject to a subordination agreement on customary market terms at the time of issuance thereof) or may be unsecured, (iii) the final maturity date of any such effectiveness shall have been paid Other Term Loans (includingexcept for (x) customary bridge loans, without limitation, any agreed upon upfront (y) Customary Term A Loans or arrangement fees owing (z) Other Term Loans in an aggregate amount not to exceed the Administrative Agent to the extent it served as the arranger for the Incremental CommitmentsInside Maturity Exception Amount (clauses (x), (y) all Incremental Commitment Requirements are satisfied, and (z), collectively, the “Inside Maturity Debt”)) all shall be no earlier than the 2021 Term Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other conditions set forth clauses of this proviso, be determined by the Borrower and the applicable Incremental Term Lenders in their sole discretion), such Other Term Loans shall have terms that are current market terms for such type of Indebtedness (as reasonably determined by the Borrower in good faith), (iv) [reserved], (v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.15 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or unsecured (provided, that if such Other Revolving Loans rank junior (x) in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and (y) in right of payment with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a subordination agreement on customary market terms at the time of issuance thereof), (vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the applicable Incremental Revolving Facility Lenders in their sole discretion), shall have been satisfiedmaterial terms that are (x) substantially similar to the material terms of the Initial Revolving Loans or (y) when taken as a whole, no more favorable (as determined by the Borrower in good faith) to the Incremental Revolving Facility Lenders providing such Other Revolving Loans than those applicable to the Initial Revolving Loans (in each case, except for covenants or other provisions (I)(A) applicable only to periods after the Latest Maturity Date in effect at the time such Other Revolving Loans are incurred or (B) that are conformed (or added) to this Agreement for the benefit of the then-existing Facilities, or (II) that are otherwise reasonably acceptable to the Administrative Agent), (vii) with respect to any syndicated Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that is secured by Liens on the Collateral pari passu with the Liens on the Collateral securing the 2021 Term Loans (other than any Inside Maturity Debt) and is incurred pursuant to clause (ii) of the definition of Incremental Amount (other than through reclassification), the All-in Yield in respect of any such Other Term Loan may not exceed the All-in Yield in respect of such 2021 Term Loans on the First Amendment Effective Date by more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBORTerm SOFR floor” as provided in the following proviso) applicable to such 2021 Term Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBORTerm SOFR floor” being applicable to such Other Term Loans, 115 Doc#: US1:15347125v11
(A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in any mandatory prepayment or commitment reduction hereunder and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2021 Term Loans in any mandatory prepayment hereunder; and (ix) (A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party, (B) the borrower of any Incremental Term Facility shall be a Loan Party and (C) the borrower of any Incremental Revolving Facility shall be the Borrower. The Administrative Agent shall promptly notify each Lender as to Each party hereto hereby agrees that, upon the effectiveness of each any Incremental AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and at terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such time, (i) Schedule 2.01 collateral and other documentation shall be deemed modified “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to reflect the revised Incremental Commitments of the affected Lenders be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless on the date of such effectiveness, as (i) subject to the case may beLCT Provisions, pursuant (x) with respect to each any Incremental Amendment shall constitute Term Loan Commitment or Incremental Revolving Facility Commitment established to finance a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to Permitted Business Acquisition or other acquisition or similar Investment permitted by this Agreement; provided that, no Specified Event of Default shall have occurred or be continuing or would result therefrom and (y) with the consent respect to any other Incremental Term Loan Commitment or Incremental Revolving Facility Commitment, no Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as reasonably required by the relevant Incremental Assumption Agreement consistent with those delivered pursuant Section 4.02 and such additional customary documents and filings (not to the extent required to be unreasonably withhelddelivered on the Closing Date pursuant to Section 4.02 and Section 5.10) as the Administrative Agent may reasonably request, delayed or conditionedsubject to Section 5.10(g), the parties to a given Incremental Amendment may specify therein assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of 116 Doc#: US1:15347125v11
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term EurocurrencyTerm Benchmark Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion). No consent of any 117 Doc#: US1:15347125v11
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the MFN Provisions, and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have no more restrictive covenants, taken as a whole, to the Borrower, than any existing Class of Term Loans (in each case, except for such more restrictive covenants (I)(A) applicable only to periods after the Latest Maturity Date in effect at the time such Extended Term Loans are incurred or (B) that are conformed (or added) to this Agreement for the benefit of the then-existing Term Loans (which may be added by an amendment to this Agreement entered into between only the Borrower and the relevant Extending Lenders, without the consent of the Administrative Agent or any other Secured Party hereto), or (II) that are otherwise reasonably acceptable to the Administrative Agent), (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum Latest Maturity Date in effect on the date of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.incurren
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Amount at the time such Incremental Term Loan Commitments and/or Incremental Revolving Facility on Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the date case may be, in their own discretion; provided that in the case of Incremental Revolving Facility Commitments either, at the election of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such dateBorrower, (xi) the then-remaining Fixed each Incremental Amount as of the date of incurrence plus (y) Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent (provided that the Administrative Agent shall withhold approval if any of the L/C Issuers object to such Incremental Revolving Facility TestLender) or (ii) the Letter of Credit Commitment may not be allocated under, any Incurrence-Based Incremental Amount that and no Letters of Credit may be incurred thereunder on requested by the Borrower under, such date, Incremental Revolving Facility Commitments. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5.0 million and a new Tranche minimum amount of $20.0 million or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (i.e., not ii) the same as any existing Tranche of Incremental Term Loans, date on which such Incremental Term Loan Commitments or other Term Loansand/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), unless the requirements of Section 2.15(c(iii) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche case of Incremental Term LoansLoan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with terms identical to Term B Loans shall have or Term B-1 Loans or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Term B Loans or Term B-1 Loans (“Other Term Loans”) and (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase”), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental 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 and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that
(i) except as to pricing, amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the Term B-1 Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall not require shall, subject to clause (ii) through (iv) of this proviso, be determined by the consent of any other LenderBorrower and the Incremental Term Lenders in their sole discretion), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which Other Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a fully executed copy whole, applicable to the Term B-1 Loans (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Term Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrower) or (z) such Incremental Amendment other terms as shall have been delivered be reasonably satisfactory to the Administrative Agent,
(ii) the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans and the Term B-1 Loans, or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans and the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Term B Loans and the Term B-1 Loans and shall not be subject to clause (viii) below),
(iii) the final maturity date of any Other Term Loans shall be no earlier than the Term B-1 Facility Maturity Date in effect on the date of incurrence (provided that this clause (iii) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term B-1 Facility Maturity Date in effect on the date of incurrence),
(iv) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 Loans (without giving effect to any amortization or prepayments on the Term B-1 Loans or Other Term Loans) (provided that this clause (iv) shall not apply to bridge facilities allowing extensions on customary terms to a date that is no earlier than the Term B-1 Facility Maturity Date in effect on the date of incurrence),
(v) except as to pricing, final maturity date, participation in voluntary and mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the Revolving Facility Maturity Date with respect to the Initial Revolving Loans existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) and (vii) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than the terms and conditions, taken as a whole, applicable to the Initial Revolving Loans (as determined in good faith by the Borrower), (x) all fees required then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrower) or (z) such other terms as shall be reasonably satisfactory to be paid in connection therewith the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the time option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans,
(viii) with respect to any Other Term Loan incurred pursuant to Section 2.21(a) that (w) is a broadly syndicated U.S. dollar denominated term “B” loan incurred by the Borrower, (x) ranks pari passu in right of security with the Term B-1 Loans, (y) is incurred prior to the six-month anniversary of the Second Amendment Effective Date and (z) has a scheduled outside maturity date less than two years after the Term B-1 Facility Maturity Date, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Second Amendment Effective Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Second Amendment Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the higher of Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time and the “SOFR floor” applicable to the initial Term B-1 Loans, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding,
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the Collateral; and
(xi) any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall have been paid be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any agreed upon upfront amendment to Section 2.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or arrangement fees owing any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and 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 extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment no Event of Default shall constitute a new Tranche, which shall have occurred and be separate continuing or would result therefrom and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, delayed or conditionedno Event of Default under Section 7.01(b), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of(c), and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(ih) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added Borrower) or (i) (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable respect to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); andBorrower) shall have occurred and be continuing or would result therefrom.
(iiid) on On the date of the making of such new any Incremental Term Loans that will be added to any Class of then existing Term Loans, and notwithstanding anything to the contrary set forth in Section 2.092.07 or Section 2.13, such new Incremental Term Loans shall be added to (and form constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of the applicable Tranche such Class on a pro rata basis (based on the relative sizes of the various outstanding such Borrowings), so that each Incremental Term Lender holding providing such Incremental Term Loans under the respective Tranche of Term Loans participates will participate proportionately in each then-outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, Class; it is being acknowledged that the effect thereof application of this clause may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period the duration of which may be less than one month) that began begin during an Interest Period then applicable to outstanding LIBO Rate Term Benchmark Loans of such Tranche the relevant Class and which will end on the last day of such Interest Period. 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 (i) all Incremental Term Loans (other than Other Term Loans), which irregular interest periods when originally made, are included in each Borrowing of the outstanding applicable Class of Term Loans on a pro rata basis, and (ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the applicable Class of outstanding Revolving Facility Loans on a pro rata basis. The Borrower agrees that Section 2.16 shall be permitted notwithstanding apply to any conversion of Term Benchmark Loans denominated in Dollars to ABR Loans reasonably required by the Administrative Agent to effect the foregoing.
(e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and/or to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing or reducing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms) ” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and
(ii) , in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loans does not exceed the sum of Loan for such Lender (x) the principal amount of the applicable if such Lender is extending an existing Term Loans effectively being extendedLoan (such extended Term Loan, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.an “Extende
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”)time, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or establish Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Pari Passu NotesBusiness Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (ywhich may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder established (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans on the same terms as the Term B Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(A) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) all fees required substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBORSOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “LIBORSOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted LIBOTerm SOFR Rate in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, and, with respect to such excess, the “LIBORSOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBORSOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) Schedule 2.01 or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed modified to reflect “Loan Documents” hereunder and may be memorialized in writing by the revised Incremental Commitments of Administrative Agent and the affected Lenders Borrower and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) solely to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (d) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition, delayed New Project or conditionedany other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under the Restatement Agreement and such additional customary documents and filings (including amendments or supplements to the Mortgages and other Collateral Documents, as applicable, and title date-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be delivered on a given post-closing basis to the extent permitted by the applicable Incremental Amendment Assumption Agreement, the relevant Collateral Documents or hereunder) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term EurocurrencyTerm Benchmark Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such L▇▇▇▇▇’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) and
in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans does made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not exceed earlier than five Business Days after the sum date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of (x) such Extending Lender. Each Incremental Assumption Agreement shall specify the principal amount terms of the applicable Extended Term Loans effectively being extendedand/or Extended Revolving Facility Commitments; provided, repriced or refinanced, that (yi) fees and expenses (including any prepayment premium, penalties or other call protection) related except as to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.inte
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at or any time and Co-Borrower may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or, at the option of the incurrence thereof shall not exceedBorrower or such Co-Borrower, when taken together with any at the time of incurrence of Permitted Pari Passu Notesthe Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, Permitted Pari Passu Loans or Permitted Junior Debt pursuant as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans than on the provisions applicable to same terms as the existing Term 2021 Revolving Loans or as are otherwise reasonably satisfactory (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial 2021 Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) the commitments to make term loans with terms identical to Term B-1 Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B-1 Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, The Borrower, the Administrative Agent each applicable Co-Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental 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 and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B-1 Loans and/or 2021 Revolving Loans shall have the same terms as the Term B-1 Loans or 2021 Revolving Loans, respectively;
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B-1 Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B-1 Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below);
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B-1 Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B-1 Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B-1 Loans;
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the 2021 Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the 2021 Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement);
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2021 Revolving Facility Maturity Date and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) substantially similar terms as the 2021 Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent;
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B-1 Loans, the All-in Yield shall be the same as that applicable to the Term B-1 Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B-1 Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to the Term B-1 Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not require exceed 0.50%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B-1 Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B-1 Loans then outstanding;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2021 Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B-1 Loans in any mandatory prepayment hereunder;
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party; and
(x) any such Other Term Loans or Other Revolving Loans may include financial maintenance covenants in addition to, or more onerous than, the Financial Covenant (each, a “Previously Absent Financial Maintenance Covenant”) so long as (x) with respect to Other Revolving Loans, such Previously Absent Financial Maintenance Covenant shall automatically apply to the Revolving Facilities and (y) with respect to Other Term Loans, such Previously Absent Financial Maintenance Covenant shall automatically apply to the Facilities, in each case, without the consent of any other Lender)party hereto. Each party hereto hereby agrees that, with upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitment Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided therein for in Section 9.08(e). Any amendment to occur on this Agreement or any other Loan Document that is necessary to effect the date on which (w) a fully executed copy provisions of this Section 2.21 and any such Incremental Amendment collateral and other documentation shall have been delivered to the Administrative Agent, (x) all fees required to be paid deemed “Loan Documents” hereunder and may be memorialized in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, delayed or conditionedno Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to a given the extent required by the Administrative Agent, consistent with those delivered on the Closing Date pursuant to the First Incremental Assumption and Amendment Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term SOFR Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such L▇▇▇▇▇’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and the loans thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower, each applicable Co-Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.ha
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”)time, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or establish Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Pari Passu NotesBusiness Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (ywhich may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder established (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans on the same terms as the Term B Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(ba) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) all fees required substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in connection therewith Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(ix) (A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such effectiveness collateral and other documentation shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(b) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent it served as required by the arranger for relevant Incremental Assumption Agreement, the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this clause (d) of Section 2.15 4.01 shall have been satisfied. The be satisfied and the Administrative Agent shall promptly notify each Lender as have received a certificate to that effect dated such date and executed by a Responsible Officer of the effectiveness Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of each Incremental AmendmentDefault under Section 7.01(b), and at such time(c), (h) or (i) Schedule 2.01 shall have occurred and be deemed modified to reflect the revised Incremental Commitments of the affected Lenders continuing or would result therefrom and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent requested required by any the relevant Incremental LenderAssumption Agreement and, Term Notes to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under the Restatement Agreement and such additional customary documents and filings (including amendments or Revolving Notessupplements to the Mortgages and other Collateral Documents, as applicable, will and title date-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) delivered on a post-closing basis to the extent needed permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents or hereunder) as the Administrative Agent may reasonably request to reflect assure that the new Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Incremental Commitments made by such Incremental LenderRevolving Facility Loans.
(c) Notwithstanding anything to Each of the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the i) all Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental other than Other Term Loans to be made pursuant to such Incremental Amendment shall have of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding d) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) and
in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans does made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not exceed earlier than five Business Days after the sum date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(e) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of (x) such Extending Lender. Each Incremental Assumption Agreement shall specify the principal amount terms of the applicable Extended Term Loans effectively being extendedand/or Extended Revolving Facility Commitments; provided, repriced or refinancedthat (i) except as to interest rates, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may shall have the right to request at any time and from time to time request that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees who and which will become Lenders, subject to the terms set forth in this Section 2.15) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that that:
(i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the Borrower, ;
(ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, ;
(iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, U.S. Dollars;
(iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, 25,000,000;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu NotesLoans, Permitted Pari Passu Loans Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(110.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, ;
(vi) the proceeds of all Incremental Facilities incurred by the Borrower may be used for any purpose not prohibited under this Agreement, ;
(vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ;
(viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; providedMaturity (in each case of the foregoing clauses (a) and (b), howeverexcluding for this purpose (x) interim loan financings that provide for automatic rollover, that Extendable Bridge Loans may have a maturity date earlier than subject to customary conditions, to Indebtedness otherwise meeting the Latest requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loansincurrence), (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding Initial Term B-2 Loans by more than 0.50% per annum, the Applicable Margins for such all then outstanding Initial Term B-2 Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% ” (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative AgentAgent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-2 Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans);
(ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial 2023 Revolving Loans and the Closing Date 2023 Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial 2023 Revolving Loans (Loans, including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial 2023 Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Applicable Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate Rate applicable to the Initial 2023 Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial 2023 Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Revolving Commitments shall be reduced based on each Lender’s Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment IncreasePercentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial 2023 Revolving Loans, ;
(x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, ;
(xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are shall not materially more favorable require any scheduled amortization or mandatory commitment reduction prior to the Lenders providing such Latest Maturity Date of the 2023 Revolving Loans and 2023 Revolving Commitments than and shall be on substantially the provisions same terms as those applicable to the existing 2023 Revolving Loans and 2023 Revolving Commitments (other than as set forth herein or as are otherwise reasonably satisfactory acceptable to the Administrative Agent, );
(xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall shall, to the extent secured, be secured by the Security AgreementAgreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty Agreement and shall not be secured by any assets that do not constitute only the Collateral for securing the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, Obligations hereunder;
(xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans Commitment Increases, Additional/Replacement Revolving Commitments and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and Documents; and
(xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), that the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date maturity date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.092.07, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b2.01(c)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, Adjusted Term SOFR in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) AfterExcept during the Covenant Relief Period, after the Amendment No. 1 Effective Date has occurred, the Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments, as applicable in an amount (following the Amendment No. 1 Effective Date) not to exceed the Incremental Amount available at the time such Incremental Term Loans incurred are funded or Incremental Revolving Facility Commitments are established (except as set forth in connection therewithSection 1.07 and provided that the determination of the Incremental Amount for Incremental Loans that are delayed draw term loans may be made either (x) at the time of the establishment of such Incremental Loan commitment hereunder (assuming that such Incremental Loan was fully drawn) or (y) at the time of such delayed draw funding; provided, eachthat in the case of the foregoing clause (y), an no such Incremental Loan commitments shall be included in any determination of “Required Lenders” (or any similar determination) until the time of such delayed draw funding) from one or more Incremental Term Loan” andLenders and/or Incremental Revolving Facility Lenders (which, collectivelyin each case, the “may include any existing Lender, but shall be required to be persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term Loans” andLoans and/or Incremental Revolving Facility Commitments, collectively with any as the case may be, in their sole discretion; provided, that each Incremental Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) Facility Lender providing a commitment to Borrower and, make revolving loans shall be subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result approval of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, conditioned or delayed). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent (i.e.which approval shall not be unreasonably withheld, not conditioned or delayed)), (ii) the same as any existing Tranche of Incremental Term Loans, date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shall together with any then outstanding Initial Term Loans form a single Class of) Initial Term Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Initial Term Loans (“Other Incremental Term Loans”). Notwithstanding anything herein to the contrary, unless the requirements of no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section 2.15(c) are satisfied), which designation 2.21 and any election to do so shall be set forth in the sole discretion of such Lender.
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental AmendmentTerm Loans and/or Incremental Revolving Facility Commitments; provided, that:
(viiii) if any (x) commitments to be incurred as a new Tranche of Incremental Term Loans, such Incremental make additional Initial Term Loans shall have the same terms as each other Tranche of the Initial Term Loans as in effect immediately prior to the effectiveness Loans, and shall form part of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements same Class of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Initial Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (IIy) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans Revolving Facility Commitments shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate same terms as the then outstanding Class of interest applicable to Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Commitment Increase shall be Facility Commitments with the same as the rate of interest applicable to the Initial then latest Revolving Loans, (BFacility Maturity Date) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments that is in effect on the effective date of the Revolving Commitment Increase or (immediately prior to the establishment of B) such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise shall be reasonably satisfactory to the Administrative AgentAgent (it being understood that, to the extent that any term is added for the benefit of any Incremental Revolving Facility Lenders, no consent shall be required from Revolving Facility Lenders to the extent that such term is (xiia) all also added for the benefit of the Revolving Facility Lenders or (b) is only applicable after the Initial Revolving Facility Maturity Date),
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank equally and ratably in right of security with the Initial Term Loans or, at the option of the Borrower, shall (A) rank junior in right of security with the Initial Term Loans (provided, that if such Other Incremental Term Loans rank junior in right of security with the Initial Term Loans, such Other Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement) or (B) be unsecured,
(iii) (A) the final maturity date of any such Other Incremental Term Loans (other than Customary Bridge Financings), shall be no earlier than the Initial Term Facility Maturity Date and (B) except as to pricing, fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Person appointed by the Borrower to arrange such Other Incremental Term Loans (the “Incremental Arranger”) in their sole discretion), any such Other Incremental Term Loans shall have (x) the same terms as the Initial Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent any term is added for the benefit of any Other Incremental Term Loans, no consent shall be required from Term Lenders to the extent that such term is (a) also added for the benefit of the Term Loans or (b) is only applicable after the Initial Term Facility Maturity Date,
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans (other than Customary Bridge Financings) shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans,
(v) [reserved],
(vi) such Other Incremental Term Loans may participate in any mandatory prepayment of Loans on a pro rata basis (subject to the exceptions set forth in Section 2.10(b)), a less than pro rata basis or solely to the same extent that any existing Class of Term Loans participates on a greater than pro rata basis as compared to any other existing Class of Term Loans as a result of such other existing Class of Term Loans agreeing to participate on a less than pro rata basis, on a greater than pro rata basis to such other Loans, than the Term Loans in any mandatory prepayment hereunder (and, for the avoidance of doubt, the allocation of any voluntary prepayment is subject only to Section 2.11(a)),
(vii) there shall be no borrower (other than the Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments, and
(viii) Other Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and Facility Commitments shall not be secured by any assets that do not constitute Collateral asset of the Borrower or its Subsidiaries other than the Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary or advisable to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e), including, for the outstanding Loans or be guaranteed by any guarantors that are not Credit Partiesavoidance of doubt, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of extent applicable, to (x) provide that the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Lenders providing any Permitted Incremental Term Loans under shall have the Tranche specified benefit of the Financial Covenants and be included in such Incremental Amendment as provided in Section 2.01(cthe “Required Lenders” and (y) (make appropriate changes to Sections 6.09, 7.01 and 9.08 with respect to Incremental Term Loans) the control of remedies in the event of a default in respect of the Financial Covenants. Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and applicable Incremental Amendment (with respect to Incremental Revolving Loans) any such collateral and such Loans other documentation shall thereafter be deemed to “Loan Documents” hereunder and may be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, memorialized in writing by the Administrative Agent and each such Lender (with the Borrower’s consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing and subject, in the case of any tranche of Incremental Term Loans or delayedany Incremental Revolving Loan that is used to finance a Limited Condition Transaction, to Section 1.07, no Incremental Term Loan Commitments or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) the Borrower shall be in compliance with the Standard Financial Covenants; (ii) no Event of Default (or, in the event that the tranche of Incremental Loans is used to finance a Limited Condition Transaction and to the extent the Lenders participating in such consenttranche of Incremental Loans, if anyas applicable, would be required agree, no Event of Default under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental CommitmentsSections 7.01(b), (yc), (h) all Incremental Commitment Requirements are satisfied, or (i)) shall exist; (iii) the representations and (z) all other conditions warranties of the Borrower set forth in this Section 2.15 Agreement shall be true and correct in all material respects (other than to the extent qualified by materiality or “Material Adverse Effect,” in which case, such representations and warranties shall be true and correct); provided, that in the event that the tranche of Incremental Term Loans or any Incremental Revolving Loan is used to finance a Limited Condition Transaction and to the extent the Incremental Term Lenders or Incremental Revolving Facility Lenders, participating in such tranche of Incremental Term Loans or any Incremental Revolving Facility Commitment, as applicable, agree, the foregoing clause (iii) shall be limited to the Specified Representations and in the case of any Limited Condition Acquisition (other than an acquisition to which the United Kingdom City Code on Takeovers and Mergers applies), those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of the Lenders and only to the extent that the Borrower or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a result of a failure of such representations to be accurate; and (iv) the Administrative Agent or with respect to any Other Incremental Term Loans, the Incremental Arranger shall have been satisfiedreceived documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent or with respect to any Other Incremental Term Loans, the Incremental Arranger. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, Assumption Agreement.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and at such time, all action as may be reasonably necessary to ensure that (i) Schedule 2.01 shall be deemed modified to reflect the revised all Incremental Commitments Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the affected Lenders outstanding applicable Class of Term Loans on a pro rata basis, and (ii) to the extent requested by any all Revolving Facility Loans in respect of Incremental LenderRevolving Facility Commitments, Term Notes or Revolving Noteswhen originally made, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be are included in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes Class of the various outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Benchmark Loans to the then outstanding Borrowings of LIBO Rate ABR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations reasonably required by any the Administrative Agent of to effect the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may shall have the right to request at any time and from time to time request that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees who and which will become Lenders, subject to the terms set forth in Section 2.21) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that that:
(i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the Borrower, ;
(ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, ;
(iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, U.S. Dollars;
(iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, 25,000,000;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu NotesLoans, Permitted Pari Passu Loans Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(110.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, ;
(vi) the proceeds of all Incremental Facilities incurred by the Borrower may be used for any purpose not prohibited under this Agreement, ;
(vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ;
(viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; providedMaturity (in each case of the foregoing clauses (a) and (b), howeverexcluding for this purpose (x) interim loan financings that provide for automatic rollover, that Extendable Bridge Loans may have a maturity date earlier than subject to customary conditions, to Indebtedness otherwise meeting the Latest requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loansincurrence), (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding Initial Term B-2 Loans by more than 0.50% per annum, the Applicable Margins for such all then outstanding Initial Term B-2 Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% ” (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative AgentAgent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-2 Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans);
(ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (Loans, including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Applicable Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate Rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Revolving Commitments shall be reduced based on each Lender’s Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment IncreasePercentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, ;
(x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, ;
(xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are shall not materially more favorable require any scheduled amortization or mandatory commitment reduction prior to the Lenders providing such Latest Maturity Date of the Initial Revolving Loans and Closing Date Revolving Commitments than and shall be on substantially the provisions same terms as those applicable to the existing Initial Revolving Loans and Closing Date Revolving Commitments (other than as set forth herein or as are otherwise reasonably satisfactory acceptable to the Administrative Agent, );
(xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall shall, to the extent secured, be secured by the Security AgreementAgreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty Agreement and shall not be secured by any assets that do not constitute only the Collateral for securing the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, Obligations hereunder;
(xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans Commitment Increases, Additional/Replacement Revolving Commitments and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and Documents; and
(xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), that the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date maturity date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b2.01(c)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate RateSOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate RateSOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, RateAdjusted Term SOFR in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”)time, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or establish Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Pari Passu NotesBusiness Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (ywhich may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder established (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans on the same terms as the Term B Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(ba) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans, Term B-2 Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans, Term B-2 Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) all fees required substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid reasonably satisfactory to the Administrative Agent,
(vii) with respect to any Subject Term Loan, the All-in connection therewith Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the Adjusted Term SOFR Rate in effect for an Interest Period of three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(ix) (A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such effectiveness collateral and other documentation shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to be deemed “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent and the Borrower and furnished to the other parties hereto.
(b) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, (A) solely to the extent it served as required by the arranger for relevant Incremental Assumption Agreement, the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this clause (d) of Section 2.15 4.01 shall have been satisfied. The be satisfied and the Administrative Agent shall promptly notify each Lender as have received a certificate to that effect dated such date and executed by a Responsible Officer of the effectiveness Borrower and (B) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition, New Project or any other acquisition or similar Investment that is permitted by this Agreement, no Event of each Incremental AmendmentDefault under Section 7.01(b), and at such time(c), (h) or (i) Schedule 2.01 shall have occurred and be deemed modified to reflect the revised Incremental Commitments of the affected Lenders continuing or would result therefrom and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent requested required by any the relevant Incremental LenderAssumption Agreement and, Term Notes to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under the Restatement Agreement and such additional customary documents and filings (including amendments or Revolving Notessupplements to the Mortgages and other Collateral Documents, as applicable, will and title date-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) delivered on a post-closing basis to the extent needed permitted by the applicable Incremental Assumption Agreement, the relevant Collateral Documents or hereunder) as the Administrative Agent may reasonably request to reflect assure that the new Incremental Term Loans and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Incremental Commitments made by such Incremental LenderRevolving Facility Loans.
(c) Notwithstanding anything to Each of the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the i) all Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental other than Other Term Loans to be made pursuant to such Incremental Amendment shall have of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Benchmark Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding d) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) and
in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans does made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not exceed earlier than five Business Days after the sum date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(e) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of (x) such Extending Lender. Each Incremental Assumption Agreement shall specify the principal amount terms of the applicable Extended Term Loans effectively being extendedand/or Extended Revolving Facility Commitments; provided, repriced or refinanced, that (yi) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.except as
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Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of initial incurrence of the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility on the date of the incurrence thereof Commitment shall not exceedbe subject, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction extent the same would be required for an assignment under Section 9.04, to the approval of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, delayed or conditioned). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are requested to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) the commitments to make term loans with terms identical to 2021 Term Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental 2021 Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that: (i) any commitments to make additional 2021 Term Loans, additional Initial Revolving Loans and/or additional Initial2025 Extended Revolving Loans shall have been delivered the same terms as the 2021 Term Loans or, Initial Revolving Loans or 2025 Extended Revolving Loans, respectively, (ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the Administrative Agentoption of the Borrower, junior in right of security with the Term Loans and Initial Revolving Loans (provided, that if such Other Term Loans rank junior (x) all fees required in right of security with the Term Loans and Initial Revolving Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and (y) in right of payment with the Term Loans and Initial Revolving Loans, such Other Term Loans shall be paid in connection therewith subject to a 111 Doc#: US1:15347125v11 subordination agreement on customary market terms at the time of issuance thereof) or may be unsecured, (iii) the final maturity date of any such effectiveness shall have been paid Other Term Loans (includingexcept for (x) customary bridge loans, without limitation, any agreed upon upfront (y) Customary Term A Loans or arrangement fees owing (z) Other Term Loans in an aggregate amount not to exceed the Administrative Agent to the extent it served as the arranger for the Incremental CommitmentsInside Maturity Exception Amount (clauses (x), (y) all Incremental Commitment Requirements are satisfied, and (z), collectively, the “Inside Maturity Debt”)) all shall be no earlier than the 2021 Term Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other conditions set forth clauses of this proviso, be determined by the Borrower and the applicable Incremental Term Lenders in their sole discretion), such Other Term Loans shall have terms that are current market terms for such type of Indebtedness (as reasonably determined by the Borrower in good faith), (iv) [reserved], (v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.15 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans or unsecured (provided, that if such Other Revolving Loans rank junior (x) in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and (y) in right of payment with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a subordination agreement on customary market terms at the time of issuance thereof), (vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the 2025 Extended Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the applicable Incremental Revolving Facility Lenders in their sole discretion), shall have been satisfiedmaterial terms that are (x) substantially similar to the material terms of the Initial Revolving Loans or (y) when taken as a whole, no more favorable (as determined by the Borrower in good faith) to the Incremental Revolving Facility Lenders providing such Other Revolving Loans than those applicable to the Initial Revolving Loans (in each case, except for covenants or other provisions (I)(A) applicable only to periods after the Latest Maturity Date in effect at the time such Other Revolving Loans are incurred or (B) that are conformed (or added) to this Agreement for the benefit of the then-existing Facilities, or (II) that are otherwise reasonably acceptable to the Administrative Agent), (vii) with respect to any syndicated Other Term Loan incurred pursuant to clause (a) of this Section 2.21 that is secured by Liens on the Collateral pari passu with the Liens on the Collateral securing the 2021 Term Loans (other than any Inside Maturity Debt) and is incurred pursuant to clause (ii) of the definition of Incremental Amount (other than through reclassification), the All-in Yield in respect of any such Other Term Loan may not exceed the All-in Yield in respect of such 2021 Term Loans on the First Amendment Effective Date by more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “Term SOFR floor” as provided in the following proviso) applicable to such 2021 Term Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the extent any portion of the Term Yield Differential is attributable to a higher “Term SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the calculation of the Term Yield Differential to the extent such floor is greater than the 112 Doc#: US1:15347125v11
(A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in any mandatory prepayment or commitment reduction hereunder and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the 2021 Term Loans in any mandatory prepayment hereunder; and (ix) (A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party, (B) the borrower of any Incremental Term Facility shall be a Loan Party and (C) the borrower of any Incremental Revolving Facility shall be the Borrower. The Administrative Agent shall promptly notify each Lender as to Each party hereto hereby agrees that, upon the effectiveness of each any Incremental AmendmentAssumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and at terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such time, (i) Schedule 2.01 collateral and other documentation shall be deemed modified “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to reflect the revised Incremental Commitments of the affected Lenders be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless on the date of such effectiveness, as (i) subject to the case may beLCT Provisions, pursuant (x) with respect to each any Incremental Amendment shall constitute Term Loan Commitment or Incremental Revolving Facility Commitment established to finance a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to Permitted Business Acquisition or other acquisition or similar Investment permitted by this Agreement; provided that, no Specified Event of Default shall have occurred or be continuing or would result therefrom and (y) with the consent respect to any other Incremental Term Loan Commitment or Incremental Revolving Facility Commitment, no Event of Default shall have occurred and be continuing or would result therefrom and (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as reasonably required by the relevant Incremental Assumption Agreement consistent with those delivered pursuant Section 4.02 and such additional customary documents and filings (not to the extent required to be unreasonably withhelddelivered on the Closing Date pursuant to Section 4.02 and Section 5.10) as the Administrative Agent may reasonably request, delayed or conditionedsubject to Section 5.10(g), the parties to a given Incremental Amendment may specify therein assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans; provided, that, solely to the extent required by 113 Doc#: US1:15347125v11
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Benchmark Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) and
in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans does made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not exceed earlier than five Business Days after the sum date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion). No consent of any Lender shall be required to effectuate any Extension, other than (xA) the principal amount consent of each Lender agreeing 114 Doc#: US1:15347125v11
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans effectively being extendedand/or Extended Revolving Facility Commitments; provided, repriced or refinancedthat (i) except as to interest rates, (y) fees and expenses any other pricing terms (including any prepayment premiumwhich interest rates, penalties or fees and other call protection) related pricing terms shall not be subject to such extension, repricing or refinancingthe MFN Provisions, and amortization, final maturity date and participation in prepayments and commitment reductions (zwhich shall, subject to clauses (ii) fees and expenses (including any upfront feesiii) of this proviso, original issue discountbe determined by the Borrower and set forth in the Pro Rata Extension Offer), underwriting discountsthe Extended Term Loans shall have no more restrictive covenants, amendment feestaken as a whole, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence Borrower, than any existing Class of Term Loans (in each case, except for such Incremental more restrictive covenants (I)(A) applicable only to periods after the Latest Maturity Date in effect at the time such Extended Term Loans.Loans are incurred or (B) that are conformed (or added) to this Agreement for the benefit of the then-existing Term Loans (which may be adde
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Incremental Commitments. (a) Borrower Borrowers may at any time and from time to time request time, upon written notice to the Agent (who shall promptly provide a copy of such notice to each Lender), propose to increase the Commitments by an aggregate amount not to exceed Ten Million Dollars ($10,000,000) (the “Incremental Revolver”), such that the Aggregate Revolving Loan Commitments after giving effect to such increase are no greater than Thirty Million Dollars ($30,000,000). Each Lender shall have the right for a period of fifteen (15) days following receipt of such notice, to elect by written notice to the Borrower Representative and the Agent, to commit to establish all or a portion of such Incremental Revolver. Final allocations of the Incremental Revolver shall be determined by the Agent after consultation with the Borrower Representative. No Lender (or any successor thereto) shall have any obligation to establish all or any portion of such Incremental Revolver or to increase any other obligations under this Agreement and the other Loan Documents, and any decision by a Lender to establish all or any portion of such Incremental Revolver shall be made in its sole discretion independently from any other Lender.
(b) If the Lenders do not commit to establish the entire Incremental Revolver pursuant to subsection (a) of this Section 1.13, the Borrower may designate another bank or other financial institution (which may be, but need not be, one or more of the existing Lenders), provided, however that if such Person is not an existing Lender, such Person must be acceptable to the Agent and join this Agreement as a Lender (an “Additional Lender”).
(c) In the event that the Borrower desires to increase the Commitments by the Incremental Revolver, the Borrower will enter into an amendment with the Agent, those Lenders providing the Incremental Revolver and Additional Lenders, if any (or one or more Eligible Transferees who will which shall upon execution thereof become Lenders hereunder if not theretofore Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”)for such Incremental Revolver, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with which amendment shall set forth any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions of the Incremental Revolver not covered by this Agreement as agreed by the Borrower, Agent and such Lenders, and shall provide for the issuance of promissory notes to evidence the Incremental Revolver if requested by such Lenders (which notes shall constitute Notes for purposes of this Agreement), such amendment to be in form and substance reasonably acceptable to Agent and consistent with the terms of this Section 1.13(c) and of the other provisions of this Agreement. No consent of any Lender not committing to the Incremental Revolver is required to permit the Incremental Revolver contemplated by and otherwise complying with this Section 1.13(c) or the aforesaid amendment to effectuate the Incremental Revolver. This clause (c) shall supersede any provisions contained in this Agreement and in the relevant Incremental AmendmentAgreement, provide commitments and/or make Loans pursuant thereto; it being understood and agreedincluding, howeverwithout limitation, that Section 9.1.
(id) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date The increase of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) Commitments by the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) Revolver will be subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Testfollowing conditions precedent: (i) after giving pro forma effect to such increase, any Incurrence-Based Incremental Amount that may no Default or Event of Default shall have occurred and be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may continuing and Borrowers will be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation pro forma compliance with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be covenants set forth in the applicable Incremental AmendmentSections 6.2 and 6.3, (viiiii) execution of the amendment hereto referenced in clause (c) above by Agent, the Lenders and Additional Lenders providing the Incremental Revolver and the Credit Parties, (iii) delivery to Agent of a certificate of the Secretary or an Assistant Secretary of each Credit Party, in form and substance satisfactory to Agent, certifying the resolutions of such Person’s board of directors (or equivalent governing body) approving and authorizing the Incremental Revolver (if not previously delivered to be incurred as a new Tranche Agent), and certifying that none of Incremental Term Loans, the organizational documents of such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior Credit Party delivered to the effectiveness Agent prior thereto have been modified or altered in any way (or if modifications have occurred, certifying new copies of the relevant Incremental Amendmentsuch organizational documents), except as (iv) delivery to purpose (which is subject Agent of an opinion of counsel to the requirements of the preceding clause (vi)) Credit Parties in form and optional prepayment provisions substance and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise counsel reasonably satisfactory to the Administrative Agent, (ix) addressed to Agent and Lenders extending the terms Incremental Revolver and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same covering such matters as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender Agent may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increasereasonably request, and (Ev) the Revolving Commitment Increase shall rank pari passu in right receipt by Agent of payment such new Notes and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees reaffirmations of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Trancheguaranties, as applicableAgent may reasonably request, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant together with amendments to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein Mortgages reflecting that the Incremental Term Loans made pursuant thereto shall constitute part ofRevolver is secured pari passu with the Revolving Loan, and be added to, an existing Tranche of Term Loans, in any case so long such endorsements to title policies or additional title searches as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof Agent may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoreasonably request.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (Cryolife Inc)
Incremental Commitments. (a1) Borrower The Borrowers may at any time and or from time to time after the Closing Date, by notice to the Administrative Agent (an “Incremental Commitment Request”), request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase increases in Revolving Commitments the amount of the Aggregate Commitment (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments ) under the Credit Facility (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (any such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectivelynew Commitments, the “Incremental Term Loans” andCommitments”), collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, whereupon the “Incremental Facilities”Administrative Agent shall promptly deliver a copy to each of the Lenders.
(2) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of On any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in on which any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Incremental Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to are effected through the establishment of such Revolving any Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant terms and conditions set forth in this AgreementSection 2.12, (i) each Incremental Lender shall make its new Commitment available rateably to the Borrowers in an amount equal to its Incremental Revolving Loans and/or Commitment and (ii) each Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (Lender shall become a Lender hereunder with respect to the Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement Commitment and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfiedAccommodations made pursuant thereto.
(b3) At Each Incremental Loan Request from the time of the provision of Incremental Commitments Borrowers pursuant to this Section 2.152.12 shall set forth the requested amount of the relevant Incremental Commitments. Incremental Commitments may be provided by any existing Lender (but no existing Lender will have an obligation to make any Incremental Commitment), Borroweror by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”, and each such existing Lender or Additional Lender, the “Incremental Lenders”); provided that the Administrative Agent and each the Swing Line Lender shall have consented (such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to such Lender or Additional Lender providing such Commitment Increases to the extent such consent, if any, would be required under Section 13.04(b17.01(2) for an assignment of Loans Commitments or Accommodations Outstanding, as applicable, to such PersonLender or Additional Lender.
(4) The terms of such Incremental Commitments shall be identical to the Commitments. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(a) no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(b) each Incremental Commitment shall be in an aggregate principal amount that is not less than Cdn. $5,000,000 or U.S. $5,000,000, as applicable, and shall be in an increment of Cdn. $1,000,000 or U.S. $1,000,000, as applicable (provided that such amount may be less than Cdn. $5,000,000 or U.S. $5,000,000, as applicable, if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.12(4));
(c) the aggregate amount of the Incremental Commitments shall not exceed Cdn. $75,000,000;
(d) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (A) customary legal opinions, board resolutions and officers’ certificates substantially consistent with those delivered on the Closing Date and (B) reaffirmation agreements and/or such amendments to the Credit Documents as may be reasonably requested by the Administrative Agent in order to ensure that such incremental Debt is provided with the benefit of the applicable Credit Documents; and
(e) such other Eligible Transferee which agrees to provide conditions as the Borrowers, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
(5) Incremental Commitments shall become Commitments (or in the case of an Incremental Commitment to be provided by an existing Lender, an increase in such Lender’s applicable Commitment) under this Agreement pursuant to an amendment (each, an “Incremental LenderAmendment”) shall execute to this Agreement and, as appropriate, the other Credit Documents, executed by the Borrowers, the other Loan Parties, each Incremental Lender providing such Commitments and deliver the Administrative Agent. The Incremental Amendment may effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent an Incremental Amendment (which shall not require and the Borrowers, to effect the provisions of this Section 2.12(5), without the consent of any Lender or any other Lender)Loan Party.
(6) Upon any Incremental Facility Closing Date on which Incremental Commitments are effected, with (a) each of the effectiveness existing Lenders shall assign to each of the Incremental Commitment provided therein to occur Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the Accommodations Outstanding on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served Facility Closing Date as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified necessary in order that, after giving effect to reflect the revised Incremental Commitments of the affected all such assignments and purchases, such Accommodations will be held by existing Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be Lenders ratably in conformity accordance with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental their Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence addition of such new Incremental Term Loans pursuant to Section 2.01(b)Commitments, (b) on each Incremental Commitment shall be deemed for all purposes a pro rata basis. To the extent the provisions of the preceding clause Commitment and each Accommodation made thereunder shall be deemed, for all purposes, an Accommodation and (iiic) require that each Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans Lender shall become a Lender with respect to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged Incremental Commitments and all matters relating thereto. The parties hereto hereby agree that the effect thereof may result minimum borrowing and repayment requirements in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans Article 3 of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods this Agreement shall be permitted notwithstanding anything not apply to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretosentence.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (Vail Resorts Inc)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans at the time such Incremental Commitments are committed to) from one or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the more Incremental Term Loan Commitments being provided thereunder Lenders and/or Incremental Revolving Facility Lenders (which Tranche shall be a new Tranche (i.e., not the same as may include any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(cLender) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if willing to be incurred as a new Tranche of Incremental Term Loans, provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is be subject to the requirements approval of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with and, to the consent of extent the Administrative Agentsame would be required for an assignment under Section 9.04, each the Issuing Bank and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Lender is a Revolving Facility Lender, an Affiliate of a Revolving Facility Lender or an Approved Fund of a Revolving Facility Lender. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be unreasonably withheld (x) commitments to make additional Revolving Facility Loans on the same terms as the Initial Revolving Loans or delayed(y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Initial Revolving Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental LenderOther Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (“Other Term Loans”).
(b) The Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans, and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Term B Loans,
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Loan Lenders in their sole discretion), shall have (x) substantially the same terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu in right of security with the Initial Revolving Loans,
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans, there shall be no amortization and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) all fees required substantially the same terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Other Term Loan incurred pursuant to clause (a) of this Section 2.21, the All-in Yield shall be the same as that applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) by more than 0.50% then the Applicable Margin (or the “LIBOR floor” as provided in the following proviso) applicable to the Term B Loans made on the Closing Date and the October 2018 Effective Date shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided, that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Term Loans, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted LIBO Rate in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding,
(iviii) Schedule 2.01 (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder, and
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed modified “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to reflect the revised Incremental Commitments of the affected Lenders be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, delayed or conditionedno Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred or be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to a given Incremental Amendment the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part of, and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including any prepayment premium, penalties or have such other call protection) related terms as shall be reasonably satisfactory to such extension, repricing or refinancingthe Administrative Agent, and (zv) fees and expenses any Extended Term Loans and/or Extended Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (including but not greater than a pro rata basis) in any upfront feesvoluntary or mandatory repayments or prepayments hereunder. Upon the effectiveness of any Incremental Assumption Agreement, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related this Agreement shall be amended to the establishment extent (but only to the extent) necessary to reflect the existence and incurrence terms of the Extended Term Loans and/or Extended Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). 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. If provided in any Incremental Assumption Agreement with respect to any Extended Revolving Facility Commitments, and with the consent of each Swingline Lender and Issuing Bank, participations in Swingline Loans and Letters of Credit shall be reallocated to lenders holding such Extended Revolving Facility Commitments in the manner specified in such Incremental Assumption Agreement, including upon effectiveness of such Incremental Term LoansExtended Revolving Facility Commitment or upon or prior to the maturity date for any Class of Revolving Facility Commitments.
(g) Upon the effectiveness of any
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Sources: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)
Incremental Commitments. (a) The Borrower may at any time and or from time to time after the Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase increases in the amount of the Revolving Credit Commitments (each such increase, a “Revolving Commitment Increase”); provided that both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, one no Default or more additional Tranches Event of Default shall exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Revolving Commitment Increases shall not exceed $150,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that each of the Administrative Agent and each Issuing Bank shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent would be required under Section 9.04(b) for an assignment of Commitments to such Lender or Additional Lender. Commitments in respect of Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s Commitment) under this Agreement pursuant to an amendment (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental FacilitiesAmendment”) to Borrower this Agreement and, as appropriate, the other Loan Documents, executed by, and in form and substance reasonably satisfactory to, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable judgment of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the terms and satisfaction on the date thereof of each of the conditions contained set forth in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; Section 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment), the receipt by the Administrative Agent of legal opinions, board resolutions and agreed, however, that (i) no other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01 and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Loans made pursuant to the Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may Revolving Commitment Increases unless it so provide an Incremental Facility without agrees. Upon each increase in the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available Commitments pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000this Section, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect Lender immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) such increase will automatically and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall further act be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable have assigned to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date each Lender providing a portion of the Revolving Commitment Increase (immediately prior each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Protective Advances such that, after giving effect to each such deemed assignment and assumption of participations, the establishment percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations in Protective Advances held by each Lender (including each such Revolving Commitment Increase Lender) will equal such Lender’s Applicable Percentage and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on effectiveness of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, Increase be prepaid from the Pro Rata Percentage proceeds of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving additional Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, hereunder (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing reflecting such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth increase in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, which prepayment shall be accompanied by accrued interest on the Loans being prepaid and (z) all other conditions set forth any costs incurred by any Lender in this accordance with Section 2.15 shall have been satisfied2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall promptly notify each Lender as not apply to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretosentence.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) Borrower may at any time and from time This Amendment shall also serve as a Commitment Increase activation notice referred to time request one or more Lenders in Section 2.21 of the Credit Agreement (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a the “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving CommitmentIncrease Activation Notice”) or with respect to $60,000,000 in aggregate amount of Incremental Term Loan Commitments Commitments. Each Person signatory hereto whose name appears on Annex A hereto (each such Term Loans incurred in connection therewith, eachPerson, an “Incremental Term Loan” and, collectively, Lender”) hereby agrees to provide Incremental Commitments in the amount set forth opposite such Incremental Lender’s name on Annex A hereto under the caption “Incremental Term Loans” andCommitment”, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “which Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender Commitments shall be obligated to provide an Incremental Commitments under the Amended Credit Agreement. The Increased Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated Closing Date in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche respect of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfiedEffective Date.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, The Borrower, the Administrative Agent and each such Lender (with party hereto agree to waive the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions 10 Business Day notice requirement set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments 2.21 of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental LenderCredit Agreement for this Commitment Increase Activation Notice.
(c) Notwithstanding anything Each Incremental Lender that was not a Lender under the Credit Agreement immediately prior to the contrary contained above in Amendment Effective Date (each, a “New Lender”) agrees that on the Amendment Effective Date, it shall become a Lender under the Amended Credit Agreement having the Commitment under the Amended Credit Agreement set forth on Annex A hereto opposite such New Lender’s name under the caption “Incremental Commitment” and shall be bound by the obligations of the Amended Credit Agreement as a Lender thereunder and entitled to the benefits of the Amended Credit Agreement, effective as of the Amendment Effective Date. The parties hereto agree that this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, clause (c) shall serve as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent New Lender Supplement required by Section 2.21 of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, Credit Agreement in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoNew Lender.
(d) Subject The Administrative Agent hereby consents to compliance with each New Lender becoming a Lender under the other applicable requirements set forth in this Amended Credit Agreement pursuant to Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount 2.21 of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term LoansCredit Agreement.
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Sources: Omnibus Amendment (AV Homes, Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent, from time to time request and at any time up until and including the date that is five (5) Business Days prior to the Maturity Date, advise of the obtaining of one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Incremental Commitments (each such increase, a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, provided that (i) no Lender Event of Default shall be obligated exist after giving effect to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”)Commitment Increase; and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (Eii) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, the Borrower’s Senior Secured Net Leverage Ratio (assuming such Commitment Increase is fully drawn and otherwise on a Pro Forma Basis as of the then most recently ended Test Period) shall not exceed 2.00:1.00. Such notice shall set forth (Ei) the Revolving amount of such Commitment Increase (provided; however, that the amount of each Commitment Increase shall rank pari passu be in right of payment an aggregate principal amount that is not less than $10,000,000) and security with the Initial Revolving Loans, (xii) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as date on which each such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, Incremental Commitment is requested to become effective (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and which shall not be secured later than the Maturity Date) (each such date, an “Incremental Effective Date”). Commitment Increases may be provided by any assets that do not constitute Collateral for the outstanding Loans existing Lender or be guaranteed by any guarantors other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each shall have consented (such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, Lender’s or Additional Lender’s providing such Commitment Increases if any, such consent would be required under Section 13.04(b) 9.04 for an assignment of Revolving Loans or Commitments, as applicable, to such PersonLender or Additional Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) or other Eligible Transferee which agrees under this Agreement pursuant to provide an Incremental Commitment amendment (each, an “Incremental LenderAmendment”) shall execute to this Agreement, executed by the Borrower, each Lender agreeing to provide such Commitment Increase, if any, each Additional Lender, if any, and deliver to the Administrative Agent Agent, and, in the case of an Additional Lender, setting forth the agreement of each Additional Lender to become a party to this Agreement and to be bound by all of the terms and provisions hereof. The Incremental Amendment (which shall not require may, without the consent of any other Lenders, effect such amendments to this Agreement as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.21. No Lender shall be obligated to provide any Commitment Increases, unless it so agrees. Upon each increase in the Commitments pursuant to this Section 2.21, (a) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Commitment Increase (each, a “Commitment Increase Lender)”) in respect of such increase, with and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding LC Exposure such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in LC Exposure held by each Lender (including each such Commitment Increase Lender) will equal the percentage of the total Commitments represented by such Lender’s Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Commitment Increase be prepaid from the Incremental Commitment provided therein to occur on the date on which proceeds of additional Revolving Loans made hereunder (w) a fully executed copy of reflecting such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid increase in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, which prepayment shall be accompanied by accrued interest on the Revolver Loans being prepaid and (z) all other conditions set forth any costs incurred by any Lender in accordance with Section 2.16. The Administrative Agent and the Lenders hereby agree that the minimum borrowing and pro rata payment requirements contained elsewhere in this Section 2.15 Agreement shall have been satisfiednot apply to the transactions effected pursuant to the immediately preceding sentence. The Administrative Agent shall promptly notify each Lender as to of the effectiveness execution and delivery of each Incremental Amendment. As of each Incremental Effective Date, and at such time, (i) Schedule 2.01 this Agreement shall be deemed modified to reflect the revised supplemented by each such Incremental Commitments of the affected Lenders Amendment, each such applicable Additional Lender shall be a “Lender” hereunder, and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to each such Incremental Lender, to ’s Incremental Commitment shall be its “Commitment” hereunder (in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment of an Additional Lender) or shall constitute a new Tranche, which shall be separate and distinct from increase its Commitment hereunder (in the existing Tranches pursuant to this Agreement; provided that, with the consent case of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionatelyLender); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may shall have the right, in consultation and coordination with the Administrative Agent as to all of the matters set forth below in this Section 2.15, but without requiring the consent of any of the Lenders, to request at any time and from time to time request that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees who and which will become Lenders, subject to the terms set forth herein) to provide an increase in Revolving Loan Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or and/or Incremental Term Loan Commitments (such Term Loans term loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental AmendmentAgreement, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide a Revolving Commitment Increase or an Incremental Facility Term Loan Commitment as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in its sole discretion to provide a Revolving Commitment Increase or an Incremental Term Loan Commitment and executed and delivered to the Administrative Agent an Incremental Agreement as provided in clause (b) of this Section 2.15, such Lender shall not be obligated to fund any Loans, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide a Revolving Commitment Increase or an Incremental Facility Term Loan Commitment without the consent of any other LenderLender (provided that the Administrative Agent, Swingline Lender and Issuing Lenders shall have consented (not to be unreasonably withheld or delayed) to any such Person providing a Revolving Commitment Increase if such consent would be required for an assignment of Revolving Loans to such Person under Section 13.04), (iii) each Revolving Commitment Increase and Tranche of Incremental Facility Term Loan Commitments shall be denominated in Dollars or an Alternative CurrencyU.S. Dollars, (iv) the amount of any Revolving Commitment Increase and Incremental Facility Term Loan Commitment made available pursuant to a given Incremental Amendment Agreement shall be in a minimum aggregate amount for all Lenders which provide such a Revolving Commitment Increase or Incremental Facility Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,00015,000,000, (v) the aggregate principal amount of any all Revolving Commitment Increases and Incremental Term Loan or Commitment, as applicable, Commitments provided pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken this Section 2.15 (together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt amounts incurred pursuant to Section 10.04(xxvii)(1) on such date10.04(xvi)), (x) in each case after the then-remaining Fixed Closing Date, shall not exceed the Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Amount; (vi) the proceeds of all Revolving Commitment Increases and Incremental Facilities Term Loans incurred by the Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower each Incremental Agreement shall specifically designate, in consultation with the approval of the Administrative Agent, any the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless unless, in the case of Incremental Term Loans or Incremental Term Loan Commitments, the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental AmendmentAgreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02); provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the Initial Term Loans and the other Tranches of Incremental Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such certain prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, as such Tranche of Incremental Term Loans shall have (a) a an Initial Incremental Term Loan Maturity Date of no earlier than the Term Loans then Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental AmendmentAgreement; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, that if the Effective Yield for any such Incremental Term Loans as of the date of incurrence of such Tranche of Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, any such Initial Term Loans shall become subject to a determination of a new Applicable Increased Term Loan Spread and the Applicable Margins for such all then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”,” (III) so that the difference between the Effective Yield Incremental Term Loans may share on a pro rata basis or a less than pro rata basis (but not greater than pro rata basis) in any mandatory prepayments of Term Loans (other than pursuant to a refinancing of such Term Loans or with respect to such new Incremental greater than pro rata payments to an earlier maturing Tranche of Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); Loans) and (IIIIV) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (IIIII)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken Loans and such other differences as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise may be reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, Loan Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans[reserved], (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security AgreementAgreements, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiiixii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans Commitment Increases and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and the applicable Incremental Amendment (with respect to Incremental Revolving Loans) Agreement and such Term Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfiedDocuments.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.152.14, the Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an incremental joinder agreement (each such agreement, an “Incremental Amendment (which shall not require the consent of any other LenderAgreement”), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Agreement shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental CommitmentsAgent), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental AmendmentAgreement, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.152.14, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; Agreement (with a designation which may be made in letters (i.e., A, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, ▇-▇, etc.)), provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment Agreement may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)Loans) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period). In connection therewith, it is hereby agreed that, to the extent the Incremental Term Loans are to be so added to the then outstanding Borrowings of Term Loans of such Tranche which irregular interest periods are maintained as LIBO Rate Loans, the Lenders that have made such Incremental Term Loans shall be permitted notwithstanding anything entitled to receive from the contrary in this AgreementBorrower such amounts, as reasonably determined by the respective Lenders, to compensate them for funding the new Incremental Term Loans of the respective Tranche during an existing Interest Period (rather than at the beginning of the respective Interest Period based upon rates then applicable thereto). All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances Lender pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement
Incremental Commitments. (a) Borrower may at The Borrowers may, by written notice to the Administrative Agent on four occasions during the period from the Closing Date to February 1, 2016, request incremental Commitments in an amount not less than $25,000,000 per request and not more than $200,000,000 in the aggregate, together with any time increase to the Revolving Committed Amount (under and as defined in the Revolving Credit Agreement) and incremental term loans under the Term Loan A Agreement (such that the Committed Amount after such increase shall never exceed $450,000,000 minus (x) any increase to the Revolving Committed Amount and (y) any incremental term loans under the Term Loan A Agreement)(the “Incremental Limit”) from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments Lenders (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewithwhich may include any existing Lender, each, an a “Incremental New Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental FacilitiesLoan Lender”) willing to Borrower andprovide such incremental Commitments in their own discretion; provided, that each New Term Loan Lender shall be subject to the terms and conditions contained in this Agreement and in approval of the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that Administrative Agent (which approval shall not be unreasonably withheld) unless such New Term Loan Lender is a Lender or an Affiliate of a Lender. Such notice shall set forth (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder the incremental Commitments being requested, and (including Eligible Transferees who will become Lenders) of at least $10,000,000, (vii) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant date on which such incremental Commitments are requested to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% become effective (the “MFN Pricing TestIncreased Amount Date”); and (III) . On any Increased Amount Date on which any such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that incremental Commitments are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shalleffective, subject to the satisfaction of the relevant conditions set forth foregoing terms and conditions, (i) each New Term Loan Lender shall make a Loan to the Borrowers (a “New Term Loan”) in this Agreementan amount equal to its incremental Commitment, make Incremental Revolving Loans and/or Incremental and (ii) each New Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (Loan Lender shall become a Lender hereunder with respect to Incremental Term Loans) such incremental Commitment and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental the New Term Loans under such Tranche, as applicable, for all purposes made pursuant thereto. The terms and provisions of this Agreement the New Term Loans and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfiedincremental Commitments shall be identical to the existing Loans.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrowers and each such New Term Loan Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment such documentation as the Administrative Agent shall reasonably specify to evidence the incremental Commitment of such New Term Loan Lender. Each of the parties hereto hereby agrees that, upon the effectiveness of any such documentation, this Credit Agreement shall be amended to the extent (which but only to the extent) necessary to reflect the existence and terms of the incremental Commitments and New Term Loans evidenced thereby (including adjusting the Commitment Percentages), and new Notes shall not require be issued and the Borrowers shall make such borrowings without the consent of the Lenders other than those Lenders with incremental Commitments. The fees payable by the Borrowers upon any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment incremental Commitments shall have been delivered to be agreed upon by the Administrative Agent, (x) all fees required to be paid in connection therewith the New Term Loan Lenders and the Borrowers at the time of such effectiveness shall have been paid (includingincrease. Notwithstanding the foregoing, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth nothing in this Section 2.15 2.7 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall constitute or be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested constitute an agreement by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense Lender to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderincrease its Commitment hereunder.
(c) Notwithstanding anything to the contrary contained above in foregoing, no incremental Commitment shall become effective under this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
2.7 unless (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of such effectiveness, the making of such new Incremental Term Loans, and notwithstanding anything to the contrary conditions set forth in Section 2.09, such new Incremental Term Loans 5.2 shall be added satisfied assuming a Loan were then being made and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a financial officer of BRT, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and form part of) each Borrowing of outstanding Term Loans of other customary closing certificates and documentation as required by the applicable Tranche on a pro rata basis (based relevant amendment or other documentation and, to the extent required by the Administrative Agent, consistent with those delivered on the relative sizes of Effective Date under Section 5.1 and such additional customary documents and filings as the various outstanding Borrowings)Administrative Agent may reasonably require, so that each Lender holding Term Loans under and (iii) the respective Tranche of Term Loans participates Borrowers shall be in each outstanding Borrowing of Term Loans of pro forma compliance with the respective Tranche (covenants set forth in Section 7.2 after giving effect to such incremental Commitments, the incurrence Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such new Incremental date.
(d) 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 New Term Loans, when originally made, are included in each borrowing of outstanding Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Term Loan B Agreement (Brandywine Operating Partnership, L.P.)
Incremental Commitments. (a) The Borrower may shall have the right to request at any time and from time to time request that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees who and which will become Lenders, subject to the terms set forth in this Section 2.15) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that that:
(i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the Borrower, ;
(ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, ;
(iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, U.S. Dollars;
(iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, 25,000,000;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu NotesLoans, Permitted Pari Passu Loans Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(110.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, ;
(vi) the proceeds of all Incremental Facilities incurred by the Borrower may be used for any purpose not prohibited under this Agreement, ;
(vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ;
(viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; providedMaturity (in each case of the foregoing clauses (a) and (b), howeverexcluding for this purpose (x) interim loan financings that provide for automatic rollover, that Extendable Bridge Loans may have a maturity date earlier than subject to customary conditions, to Indebtedness otherwise meeting the Latest requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, incurrence); (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding Initial Term B-3 Loans by more than 0.50% per annum, the Applicable Margins for such all then outstanding Initial Term B-3 Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% ” (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative AgentAgent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-3 Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans);
(ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial 2023 Revolving Loans and the Closing Date 2023 Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial 2023 Revolving Loans (Loans, including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial 2023 Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Applicable Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate Rate applicable to the Initial 2023 Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial 2023 Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Revolving Commitments shall be reduced based on each Lender’s Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment IncreasePercentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial 2023 Revolving Loans, ;
(x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, ;
(xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are shall not materially more favorable require any scheduled amortization or mandatory commitment reduction prior to the Lenders providing such Latest Maturity Date of the 2023 Revolving Loans and 2023 Revolving Commitments than and shall be on substantially the provisions same terms as those applicable to the existing 2023 Revolving Loans and 2023 Revolving Commitments (other than as set forth herein or as are otherwise reasonably satisfactory acceptable to the Administrative Agent, );
(xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall shall, to the extent secured, be secured by the Security AgreementAgreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty Agreement and shall not be secured by any assets that do not constitute only the Collateral for securing the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, Obligations hereunder;
(xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans Commitment Increases, Additional/Replacement Revolving Commitments and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and Documents; and
(xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), that the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date maturity date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.092.07, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b2.01(c)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, Adjusted Term SOFR in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may shall have the right at any time and or from time to time on or after the Effective Date, upon written notice to and in coordination with the Administrative Agent as to all matters set forth in this Section 2.15, to request that one or more Lenders (or and/or one or more other Eligible Transferees who Assignees which will become Lenders) to provide an increase in Revolving Incremental Commitments (a the “Revolving Incremental Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that provided that:
(i) no Lender shall be obligated to provide an Incremental Facility Commitment as a result of any such request by the Borrower, ;
(ii) any Lender (including any Eligible Transferee who Assignees which will become a Lender) may so provide an Incremental Facility Commitment without the consent of any other Lender, ;
(iii) each the provision of Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available Commitments pursuant to this Section 2.15 on a given date pursuant to a given particular Incremental Amendment Commitment Agreement shall be in a minimum aggregate amount (for all Lenders which provide such Incremental Facility thereunder (including and other Eligible Transferees Assignees who will become LendersLenders pursuant thereto) of at least not less than $10,000,000, 25,000,000 (or such lesser amount as agreed to by the Borrower) and shall be in integral multiples of $5,000,000;
(iv) such Incremental Commitments shall not exceed an aggregate principal amount of $100,000,000;
(v) the aggregate principal amount of any Loan or Commitment, Administrative Agent shall promptly notify each Lender as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction effectiveness of the applicable Incurrence-Based each Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Commitment Agreement;
(vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with not obtain Incremental Commitment Increases pursuant to this Section 2.15 more than five times and each notice thereof from the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche Borrower shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same requested amount and proposed terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as Commitment Increase;
(vii) the upfront fees payable to purpose (which is subject to the requirements each Incremental Lender in respect of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans Commitment shall be entitled separately agreed to share in mandatory prepayments by the Borrower and each such Incremental Lender; and
(viii) (x) on a ratable basis with the other Tranches effective date of Term Loans (unless any Incremental Commitment Increase, the holders Commitment of each Lender shall be increased by the amount of the Incremental Term Loans of any Tranche agree to take a lesser share of any Commitment Increase incurred by such prepayments)); providedLender, howeverif any, that and (Iy) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable pursuant to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving constitute Loans and the Closing Date Revolving Commitments, and, for all purposes of this Agreement and the other Credit DocumentsDocuments and shall be made on the same terms as the Loans and, as a consequence, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security AgreementCollateral Rig Mortgages, and guaranteed under each relevant Guarantyreceive the benefit of the Guarantees, on a pari passu basis with all other Loans Obligations secured by the Security Agreement Collateral Rig Mortgages and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for receiving the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction benefit of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfiedGuarantees.
(b) At On or prior to the time effective date of the provision of any Incremental Commitments pursuant to this Section 2.15, BorrowerCommitment Increase, the Administrative Agent following conditions shall have been satisfied:
(i) the Borrower and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee Assignee (each an “Incremental Lender”) which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment Commitment Agreement substantially in the form of Exhibit 2.15 (which shall not require the consent of any other Lenderappropriately completed) (each an “Incremental Commitment Agreement”), with the effectiveness of the such Incremental Lender’s Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of set forth in such Incremental Amendment Commitment Agreement, provided that the Administrative Agent shall have been consented (such consent not to be unreasonably withheld) to such Eligible Assignee providing such Incremental Commitment if such consent would be required under Section 10.10 for an assignment of Loans or Commitments, as applicable, to such Eligible Assignee;
(ii) the Borrower and each Loan Party shall have delivered such amendments, modifications and/or supplements to the Credit Documents as are necessary or in the reasonable opinion of the Administrative Agent, (x) all fees required desirable to insure that the additional Obligations to be paid incurred pursuant to the Incremental Commitments are secured by, and entitled to the benefits of, the Collateral Rig Mortgages and the Guarantees;
(iii) the Administrative Agent shall have received evidence satisfactory to it that the additional Obligations to be incurred on such date pursuant to the Incremental Commitments are permitted by the terms of the outstanding Indebtedness of Holdings and its applicable Subsidiaries;
(iv) the Borrower and the other Loan Parties shall deliver to the Administrative Agent such other officers’ certificates, board of director resolutions and evidence of existence and good standing, where applicable, as the Administrative Agent shall reasonably request;
(v) each of the representations and warranties of the Loan Parties set forth herein and in connection therewith the other Credit Documents shall be true and correct in all material respects (except any such representation or warranty that is qualified or limited by its terms by materiality, in which case such representation or warranty shall be true and correct) at the time of a request for Incremental Commitments and upon the effectiveness of any Incremental Commitment Agreement (in each case, 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 as of such earlier date);
(vi) no Default or Event of Default shall exist at the time of a request for Incremental Commitments or upon the effectiveness shall have been paid of any Incremental Commitment Agreement; and
(vii) after giving effect to such Incremental Commitment Increase, any limitations on Subsidiary Indebtedness or secured Indebtedness set forth in any material agreement (including, without limitation, the Indentures and the Existing Credit Agreement) that is binding on Holdings and/or any agreed of its Subsidiaries will not be exceeded and, upon upfront or arrangement fees owing to request by the Administrative Agent, the Borrower shall have provided the Administrative Agent with calculations in reasonable detail to establish the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in satisfaction of this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lendercondition precedent.
(c) Notwithstanding anything On the effective date of any Incremental Commitment Increase pursuant to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental LendersBorrower shall, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, in coordination with the consent of the Administrative Agent (not to be unreasonably withheldAgent, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of repay outstanding Term Loans of the applicable Tranche on a pro rata basis (based on existing Lenders and incur additional Loans from certain other new Lenders, in each case to the relative sizes extent necessary so that all of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates Lenders participate in each outstanding Borrowing of Term Loans pro rata on the basis of the their respective Tranche Incremental Commitments (after giving effect to any increase in the incurrence of such new Incremental Term Loans total Commitment pursuant to this Section 2.01(b2.15)) on a . The Borrower shall be obligated to pay to the respective Lenders the costs of the type referred to in Section 2.11 in connection with any such repayment and/or Borrowing. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced extent such requirements are offered the opportunity to participate in inconsistent with such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loanssentence.
Appears in 1 contract
Sources: Credit Agreement (Transocean Ltd.)
Incremental Commitments. (a) Borrower may at any time and The Borrowers may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an Incremental Facility on exceed the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the date of incurrence plus (y) case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Facility TestRevolving Lender is a Lender, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5.0 million and a new Tranche minimum amount of $25.0 million or equal to the remaining Incremental Amount), (i.e., not ii) the same as any existing Tranche of Incremental Term Loans, date on which such Incremental Term Loan Commitments or other Term Loansand/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), unless (iii) in the requirements case of Section 2.15(c) Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are satisfiedto be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Revolving Loans”), which designation shall be set forth and (iv) in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche case of Incremental Term LoansLoan Commitments, whether such Incremental Term Loans shall have Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term B Loans (unless the holders of the Incremental “Other Term Loans of any Tranche agree to take a lesser share of any such prepaymentsLoans”)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have .
(a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred The Borrowers and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of each Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and and/or Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Facility Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have been delivered (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (iv) the Other Revolving Loans shall rank pari passu in right of payment and of security with the Revolving Facility Loans, (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization and final maturity date, shall have (x) all fees required to the same terms as the Revolving Facility Loans or (y) such other terms as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent, and (vi) the weighted average life to maturity of any Other Revolving Loans shall be no shorter than the remaining weighted average life to maturity of the Revolving Facility Loans; provided, further that the interest rate margin (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Loan) in respect of any Other Term Loan and/or Other Revolving Loan shall be the same as that applicable to the Term Loans and/or the Revolving Facility Loans; except that the interest rate margin in respect of any Other Term Loan and/or Other Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Loan) may exceed the Applicable Margin for the Term Loans and/or the Revolving Facility Loans, respectively, by no more than ½ of 1% (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed three-year life to maturity), or if it does so exceed such Applicable Margin, such Applicable Margin shall be increased so that the interest rate margin in respect of such Other Term Loan or Other Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable to all Lenders providing such Other Term Loan and/or Other Revolving Loan), is no more than ½ of 1% higher than the Applicable Margin for the Term Loans or the Revolving Facility Loans, respectively. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as but only to the effectiveness of each Incremental Amendment, and at such time, (iextent) Schedule 2.01 shall be deemed modified necessary to reflect the revised Incremental Commitments existence and terms of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(b) Notwithstanding the foregoing, delayed no Incremental Term Loan Commitment or conditioned)Incremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, the parties conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a given Responsible Officer of the Borrowers, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Amendment Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably require to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, and be added to the extent agreed by the applicable Incremental Term Lenders in the applicable Incremental Assumption Agreement, junior to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrowers shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date thereunder and the same Applicable Margins application of the proceeds therefrom as if made and applied on such date.
(c) Each of the Tranche of Term Loans parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to which the new ensure that (i) all Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental other than Other Term Loans) in the form of additional Term B Loans, and notwithstanding anything to the contrary set forth when originally made, are included in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term B Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of the various outstanding BorrowingsIncremental Revolving Facility Commitments (other than Other Revolving Loans), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates when originally made, are included in each outstanding Borrowing of Term outstanding Revolving Facility Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrowers agree that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to the then outstanding Borrowings of LIBO Rate ABR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations reasonably required by any the Administrative Agent of to effect the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (Rexnord Corp)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request Incremental Commitments, in order to fund a Designated Acquisition, in an amount not to exceed the Incremental Amount from one or more Incremental Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (which may include any existing Lender; provided that no such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no existing Lender shall be obligated to provide an Incremental Facility as a result of any such request by BorrowerIncremental Commitments unless it so agrees) willing to provide such Incremental Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Commitments being requested, (ii) any Lender the date on which such Incremental Commitments are requested to become effective (including any Eligible Transferee who will become a Lenderthe “Increased Amount Date”) may so provide an Incremental Facility without the consent of any other Lender, and (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide whether such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant Commitments are to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term B Loan Commitments or other commitments to make term loans with pricing and/or amortization terms different from the Term B Loans (“Other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Commitment of such Incremental Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Commitments; provided that with respect to Incremental Term Loans, (A) the Other Term Loans shall rank pari passu or junior in right of payment and of security with (including being guaranteed by the same Guarantors and being secured on a pari passu or junior basis by the same Collateral as) the Term B Loans and, except as to pricing, amortization and final maturity date, shall have (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Borrower and the Administrative Agent; provided that with respect to Incremental Term Loans, the interest rates and amortization schedule shall (subject to the following criteria) be determined by the Borrower and the Incremental Term Lenders providing such Incremental Term Loans and, if the initial yield (as determined by the Administrative Agent as set forth below) on the Other Term Loans exceeds by more than 50 basis points (the amount of such excess above 50 basis points being herein referred to as the “Yield Differential”) the interest rate margins then in effect for outstanding Term Loans (which shall not require be calculated to be the consent sum of (I) the Applicable Margin then in effect for Term SOFR Loans increased by the amount that any interest rate “floor” applicable to such Term SOFR Loans on such date would exceed Adjusted Term SOFR for a three-month Interest Period commencing on such date plus (II) all upfront or similar fees or original issue discount paid by the Borrower generally to the Lenders who provided the outstanding Term Loans in the primary syndication thereof based on an assumed four-year life to maturity), then the Applicable Margin then in effect for outstanding Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans under the Incremental Term Loan Commitment, (B) the final maturity date of any other Lender)Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (C) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans. Each of the parties hereto hereby agrees that, with upon the effectiveness of the any Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Assumption Agreement, this Agreement shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent amended to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as but only to the effectiveness of each Incremental Amendment, and at such time, (iextent) Schedule 2.01 shall be deemed modified necessary to reflect the revised Incremental Commitments existence and terms of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments evidenced thereby as provided for in Section 10.01. Any such deemed amendment may be memorialized in writing by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto, delayed it being understood that such Incremental Assumption Agreement may, without the consent of the other Lenders, effect such amendments to this Agreement or conditioned), the parties to a given Incremental Amendment any other Loan Document as may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loansnecessary or appropriate, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment opinion of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term LoansAdministrative Agent, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of this Section 2.12. This Section 2.12 shall supersede any provision of Section 2.11 or Section 10.01 to the preceding contrary. For purposes of clause (iiiA) require that Incremental Lenders making new above, the initial yield on any Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods Loan Commitment shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations determined by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject equal to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal interest rate margin above Adjusted Term SOFR for loans under the Incremental Term Loan Commitment that bear interest based on Adjusted Term SOFR (which shall be increased by the amount of the that any interest rate “floor” applicable to such Incremental Term Loans effectively being extended, repriced or refinanced, on the date such Incremental Term Loans are made would exceed Adjusted Term SOFR for a three month Interest Period commencing on such date) and (y) if the Incremental Term Loan Commitment is originally advanced at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or the Borrower for doing so (the amount of such discount or fee, expressed as a percentage of the Incremental Term Loan Commitment, being referred to herein as “OID”), the amount of such OID divided by four.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section 2.12 unless (i) on the date of such effectiveness, the conditions set forth in Section 5.01(b) shall be satisfied or waived and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, (ii) the Administrative Agent shall have received, to the extent required by the Administrative Agent, customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and such additional customary documents and filings (including amendments to the Security Documents) as the Administrative Agent may reasonably require to assure that the Incremental Loans and Incremental Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans, (iii) no Default or Event of Default shall have occurred and be Continuing or would result therefrom and (iv) there shall have been paid to the Administrative Agent, for the account of the Administrative Agent and the Lenders (including any Person becoming a Lender as part of such Incremental Assumption Agreement on the related Increased Amount Date), as applicable, all fees and expenses (including reasonable out-of-pocket fees, charges and disbursements of counsel) that are due and payable on or before the Increased Amount Date.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any prepayment premiumand all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans) in the form of additional Term B Loans, penalties or when originally made, are included in each Borrowing of outstanding Term B Loans on a pro-rata basis. Section 3.05 shall not apply to any conversion of Term SOFR Loans to Base Rate Loans reasonably required by the Administrative Agent to effect the foregoing. On each Increased Amount Date, each Lender which is providing an Incremental Commitment (i) shall become a “Lender” for all purposes of this Agreement and the other call protectionLoan Documents, (ii) related shall have, as applicable, an Incremental Commitment which shall become “Commitments” hereunder and (iii) shall make an Incremental Term Loan to the Borrower in a principal amount equal to such extension, repricing or refinancingIncremental Commitment, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term LoansLoan or Incremental Commitment shall be a “Loan” or “Commitment” for all purposes of this Agreement and the other Loan Documents.
Appears in 1 contract
Sources: Exchange First Lien Loan Credit Agreement (Altisource Portfolio Solutions S.A.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any at the time of incurrence of Permitted Pari Passu Notesthe Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, Permitted Pari Passu Loans or Permitted Junior Debt pursuant as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender or a lender in respect of the Existing Revolving Facility Loans. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche minimum amount of $10,000,000, or equal to the remaining Incremental Amount or, in each case, (i.e., not x) such lesser amount approved by the same as any existing Tranche Administrative Agent or (y) in the case of Incremental Term Loans, Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments established pursuant to clause (ii) of or other Term Loans(iv) of the definition of “Incremental Amount”, any amount thereof), unless (ii) the requirements of Section 2.15(cdate on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) are satisfied), which designation shall be set forth in the applicable case of Incremental AmendmentRevolving Facility Commitments, (viii) if that such Incremental Revolving Facility Commitments are to be incurred commitments to make Revolving Facility Loans (including whether such Incremental Revolving Facility Commitments shall constitute Super-Priority Obligations) and whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms as a new Tranche the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of Incremental Term LoansLoan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (including whether such Incremental Term Loans shall have the same terms as each other Tranche of constitute Super-Priority Obligations) (“Other Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (viLoans”)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, Term B Loans and are incurred pursuant to clause (xii) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those definition of other Tranches “Incremental Amount” shall consist of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental additional Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term B Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any Assumption Agreement and such other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to documentation as the Administrative Agent shall reasonably specify to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, evidence the Incremental Term Loan Commitments provided by an Commitment of such Incremental Term Lender or and/or Incremental Lenders, as Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent terms of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the applicable Incremental Term Loans made pursuant thereto shall constitute part ofand/or Incremental Revolving Facility Commitments; provided, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfiedthat:
(i) the Incremental any commitments to make additional Term B Loans to be made pursuant to such Incremental Amendment and/or additional Initial Revolving Loans shall have the same Borrower, the same Maturity Date and the same Applicable Margins terms as the Tranche of Term B Loans to which the new Incremental Term Loans are being added;or Initial Revolving Loans, respectively,
(ii) the new Incremental Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall have rank pari passu or, at the same Scheduled Repayment Dates as then remain option of the Borrower, junior in right of security with respect to the Tranche to which Term B Loans (provided, that (1) if such new Incremental Other Term Loans are being added (rank junior in right of security with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term B Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Other Term Loans shall be added subject to (and form part of) each Borrowing a Permitted Junior Intercreditor Agreement and, for the avoidance of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings)doubt, so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect shall not be subject to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iiivii) require that Incremental Lenders making new Incremental Term Loans add below and (2) if such Incremental Term Loans to rank pari passu in right of security with the then outstanding Borrowings of LIBO Rate Loans of Term B Loans, such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods shall, as designated by the Borrower, either have priority under the Priority Waterfall or not have priority under the Priority Waterfall, (i.e.iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, an Interest Period that began during an Interest Period then applicable except as to outstanding LIBO Rate Loans pricing, amortization, final maturity date, participation in mandatory prepayments and ranking (which shall, subject to the other clauses of such Tranche this proviso, be determined by the Borrower and which will end on the last day of such Interest PeriodIncremental Term Lenders in their sole discretion), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of have (x) substantially similar terms as the principal amount of the applicable Term B Loans effectively being extended, repriced or refinanced, (y) fees and expenses such other terms (including any prepayment premium, penalties or other call protectionas to guarantees and collateral) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related as shall be reasonably satisfactory to the establishment and incurrence of such Incremental Term Loans.Administrative Agent,
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Incremental Commitments. (a) Borrower may at any time and The Company may, by written notice to the Agent from time to time time, request Incremental Term Commitments and/or Incremental Revolving Credit Commitments, as applicable, in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders (or one or more Eligible Transferees who will become Lenderswhich may include any existing Lender) willing to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or such Incremental Term Loan Commitments (such Term Loans incurred Advances and/or Incremental Revolving Credit Advances, as the case may be, in connection therewiththeir sole discretion; provided, each, an “that each Incremental Term Loan” and, collectively, the “Lender and/or Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, Credit Lender (which is not an “Incremental Facility” and collectively, the “Incremental Facilities”existing Lender) to Borrower and, shall be subject to the approval requirements of Section 9.07. Such notice shall set forth (A) the amount of the Incremental Term Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (B) the date on which such Incremental Term Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (the “Increased Amount Date”) and (C) (i) whether such Incremental Term Commitments are to be commitments to make term advances (“Other Term Advances”) and/or (ii) whether such Incremental Revolving Credit Commitments are to be Revolving Credit Commitments or commitments to make revolving advances with pricing and/or amortization terms different from the Revolving Credit Advances (“Other Revolving Credit Advances”).
(b) The applicable Borrower and such other Loan Parties as may be required with respect to such Incremental Term Commitment or Incremental Revolving Credit Commitment and each Incremental Term Lender and/or Incremental Revolving Credit Lender shall execute and deliver to the Agent an Incremental Assumption Agreement, guarantor acknowledgments and consents, Notes (if requested in advance by the applicable Lenders) and such other closing or corporate documentation as the Agent (acting at the direction of the applicable Incremental Lenders) shall reasonably request. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Advances and/or Incremental Revolving Credit Advances to be made thereunder, and shall be made (x) on terms and conditions contained in this Agreement agreed to by the applicable Borrower and the applicable Incremental Lenders, and in a form that is reasonably acceptable to the relevant Incremental Amendment, provide commitments and/or make Loans pursuant theretoAgent; it being understood and agreed, howeverprovided, that (i) no Lender shall be obligated to provide an Incremental the Other Term Advances and Other Revolving Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase Advances shall rank pari passu in right of payment and of security with the Initial Term Advances and Revolving LoansCredit Advances, as applicable, (ii) the final maturity date of (A) any Other Term Advances shall be no earlier than the scheduled Termination Date applicable to the Term B-1 Facility and Euro Term B-1 Facility (as set forth in clause (c) of the definition of “Termination Date”) and/or (B) any Other Revolving Facility Advances shall be no earlier than the scheduled Termination Date applicable to the Revolving Credit Facilities (under clause (a)(i) of the definition of “Termination Date”), (iii) the weighted average life to maturity of any Other Term Advances shall be no shorter than the weighted average life to maturity of the Term B-1 Advances or Euro Term B-1 Advances, (iv) the Other Revolving Facility Advances shall require no scheduled amortization or mandatory commitment reductions prior to the scheduled Termination Date applicable to the Revolving Credit Facilities (under clause (a)(i) of the definition of “Termination Date”), (v) no Default shall have occurred and be continuing or would result from such Incremental Term Advances and/or Incremental Revolving Credit Advances and (vi) in the event that the Applicable Margin for any Other Term Advances or Other Revolving Facility Advances is more than 50 basis points greater than the Applicable Margin for the Term Advances or Revolving Credit Advances, as applicable, then the Applicable Margin for the Term Advances or Revolving Credit Advances, as applicable, shall be increased to the extent necessary so that the Applicable Margin for the Other Term Advances or Other Revolving Facility Advances is no more than 50 basis points greater than the Applicable Margin for the Term Advances or Revolving Credit Advances, as applicable; provided further, that in determining the Applicable Margin applicable to the Term Advances, Revolving Credit Advances, Other Term Advances and Other Revolving Credit Advances, (x) the maturity, interest rate and original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as OID) payable by such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable Borrower to the Lenders providing such Revolving Commitments than in the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower primary syndication thereof shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) included (with respect OID being equated to Incremental Term Loans) and applicable Incremental Amendment (with respect interest based on an assumed four-year life to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitmentsmaturity), (y) all Incremental Commitment Requirements are satisfied, customary arrangement or commitment fees payable to the arrangers (or their affiliates) of such loans shall be excluded and (z) all other conditions set forth if the Eurocurrency Rate “floor” applicable to the Other Term Advances or Other Revolving Facility Advances is higher than the Eurocurrency Rate “floor” applicable to the Term B-1 Advances, Euro Term B-1 Advances or Revolving Credit Advances, as applicable, then the amount of such difference shall be deemed to be an increase in the Applicable Margin for the Other Term Advances or Other Revolving Facility Advances for purposes of determining compliance with this Section 2.15 shall have been satisfiedclause (vi) (it being agreed, however, that the Company may elect to satisfy, at least in part, the requirements of this clause (vi) by increasing the Eurocurrency Rate “floor” applicable to the relevant existing Term B-1 Advances, Euro Term B-1 Advances or Revolving Credit Advances to a rate that is no greater than the Eurocurrency Rate “floor” applicable to the applicable Other Term Advances and Other Revolving Credit Advances). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, and at such timeupon the effectiveness of any Incremental Assumption Agreement, (i) Schedule 2.01 this Agreement shall be deemed modified amended to the extent (but only to the extent) necessary to reflect the revised Incremental Commitments existence and terms of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided and/or Incremental Revolving Credit Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, Agent with the Company’s consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned)) and furnished to the other Persons then party to this Agreement.
(c) Notwithstanding the foregoing, the parties to a given Incremental Amendment may specify therein that the no Incremental Term Loans made pursuant thereto Commitment or Incremental Revolving Credit Commitment shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
become effective under this Section 2.04 unless (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of such effectiveness, the making of such new Incremental Term Loans, representations and notwithstanding anything to the contrary warranties set forth in Section 2.094.01 shall be true and correct and the Agent (acting at the direction of the applicable Incremental Lenders) shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the applicable Borrower, (ii) the Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 3.01 and such new additional documents and filings (including amendments to the Mortgages and other Collateral Documents and title endorsement bringdowns) as the Agent may reasonably require to assure that the Incremental Term Loans shall Advances and/or Incremental Revolving Facility Advances are secured by the Collateral ratably with the existing Term Advances and Revolving Credit Advances, and (iii) the Borrowers would be added in Pro Forma Compliance, calculated as of the last day of the most recently ended fiscal quarter for which financial statements delivered under Section 5.01(a)(i) are available, determined on a Pro Forma Basis giving effect to such Incremental Term Commitment and/or Incremental Revolving Credit Commitments (assuming for such purpose that any such Incremental Revolving Credit Commitments are fully drawn) and form part ofthe Advances to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Advances and/or Incremental Revolving Facility Advances (other than Other Term Advances or Other Revolving Credit Advances), when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) Advances or Revolving Facility Advances on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) So long as no Default or Event of Default then exists or would result therefrom, the Borrower may at any time and from time shall have the right to time request on one or more occasions that one or more Lenders (or and/or one or more other Eligible Transferees who will become LendersAssignees provide (A) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such under a given Tranche of Incremental Term Loans incurred as designated in connection therewith, each, an “the Incremental Term Loan” and, collectively, Commitment Agreement in accordance with the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower provisions of this Agreement and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental AmendmentCommitment Agreement, provide commitments and/or make Loans Incremental Term Loans, pursuant thereto; thereto or (B) one or more increases in the Revolving Loan Commitments (“Increased Revolving Loan Commitments”), it being understood and agreed, however, that that:
(i) no Lender shall be obligated to provide an Incremental Facility Term Loan Commitment or Increased Revolving Loan Commitment as a result of any such request by the Borrower, ;
(ii) any Lender (including any or other Eligible Transferee who will become a Lender) Assignee may so provide an Incremental Facility Term Loan Commitment without the consent of any other Lender; provided, that any Eligible Assignee that (x) is not a Lender, an affiliate of a Lender or an Approved Fund shall be subject to the consent (not to be unreasonably withheld) of the Administrative Agent or (y) is providing an Increased Revolving Loan Commitment shall be subject to the consent (not to be unreasonably withheld) of the Administrative Agent, the Swingline Lender and the Issuing Lenders;
(iii) each provision of Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available Term Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a given particular Incremental Amendment Commitment Agreement shall be in a minimum aggregate amount (for all Lenders which provide such Incremental Facility thereunder (including and other Eligible Transferees Assignees who will become LendersLenders pursuant thereto) of at least $10,000,00025,000,000 and each provision of Increased Revolving Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) of $5,000,000;
(iv) after giving effect to the establishment of such Incremental Term Loan Commitments or Increased Revolving Loan Commitments, the Maximum Consolidated Senior Secured Leverage Condition (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in an amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) shall be satisfied on the date such Incremental Term Loan Commitments or Increased Revolving Loan Commitments are established;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, each Incremental Commitment Agreement pursuant to an which Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower Term Loan Commitments are being provided shall specifically designate, in consultation with designate the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Loans or Incremental Term Loan Commitments or other Term Loans), Commitments) unless the requirements of following Section 2.15(c1.11(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause ;
(vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an (x) Incremental Term Loan Commitment pursuant to an Incremental Amendment Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment Commitment Agreement as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans1.01(c) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, Tranche for all purposes of this Agreement and the other applicable Credit Documents or (y) an Increased Revolving Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, have a Revolving Loan Commitment from and after the date of the related Incremental Commitment Agreement;
(vii) in no event shall the Maturity Date of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be earlier than the Maturity Date of any other Tranche of Loans (or the Revolving Loan Commitments) outstanding at the time such Incremental Term Loans are incurred;
(viii) in no event shall the Weighted Average Life to Maturity of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be less than the Weighted Average Life to Maturity of any other Tranche of Term Loans outstanding at the time such Incremental Term Loans are incurred;
(ix) after giving effect to the establishment of such Incremental Term Loan Commitments and Increased Revolving Loan Commitments, the Borrower shall be in compliance with Sections 9.08 and 9.09 (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in an amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) at such time;
(x) the Applicable Margin, minimum Eurodollar Rate, if any, and minimum Base Rate, if any, for the Incremental Term Loans shall be determined by the Borrower and the applicable Lenders or Eligible Assignees providing such Incremental Term Loans; provided, however, that (i) the interest rate margins for the Incremental Term Loans shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the Initial Term Loans plus 25 basis points (unless the interest rate margins applicable to the Term Loans are increased to the extent necessary to achieve the foregoing), (ii) solely for purposes of the foregoing clause (i), the interest rate margins applicable to any Initial Term Loans or Incremental Term Loans shall be deemed to include all upfront or similar fees or original issue discount (but excluding bona fide arrangement fees) payable by the Borrower generally to the Lenders providing such Initial Term Loans or such Incremental Term Loans based on an assumed four-year life to maturity) and (xiviii) all if the lowest permissible Eurodollar Rate is greater than 1.50% or the lowest permissible Base Rate is greater than 2.50% for such Incremental Commitment Requirements Term Loans, the difference between such “floor” and 1.50%, in the case of Eurodollar Loans, or 2.50%, in the case of Base Rate Loans, shall be equated to interest rate margin for purposes of clause (i) above;
(xi) except as provided above, the terms and conditions applicable to Incremental Term Loans shall be determined by the Borrower and the Lenders providing such Incremental Term Loans; provided that to the extent such terms are satisfiedmaterially different from those of the Initial Term Loans, such terms shall be reasonably satisfactory to the Administrative Agent; and
(xii) the Borrower shall provide the Administrative Agent with notice of each request for Incremental Term Loan Commitments pursuant to this Section 1.11 contemporaneously with the making of each such request.
(b) At the time of the any provision of Incremental Term Loan Commitments of a given Tranche pursuant to this Section 2.151.11, (i) the Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee Assignee which agrees to provide an Incremental Term Loan Commitment (each, each an “Incremental Term Loan Lender”) shall execute (which execution may be in counterparts) and deliver to the Administrative Agent an Incremental Amendment Commitment Agreement (which it being understood that a single Incremental Commitment Agreement shall not require be executed and delivered by all Incremental Term Loan Lenders providing Incremental Term Loan Commitments in response to a particular request for same made by the consent Borrower) substantially in the form of any other LenderExhibit C (appropriately completed and with such modifications as may be reasonably acceptable to the Administrative Agent), with the effectiveness of the Incremental Commitment Term Loan Commitment(s) provided therein to occur on the date on which (w) a fully executed copy of set forth in such Incremental Amendment Commitment Agreement and the payment of any fees required in connection therewith; (ii) VHS Holdco I and its Subsidiaries shall have been delivered such amendments, modifications and/or supplements to the Security Documents (if any) as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the additional Obliga- tions to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the Security Documents; (iii) the Administrative Agent shall receive an acknowledgment from the Credit Parties that the Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are entitled to the benefits of the applicable Credit Documents; and (iv) the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, (x) all fees required from counsel to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing Borrower reasonably satisfactory to the Administrative Agent to (which, unless otherwise requested by the extent it served Administrative Agent, may be the Borrower’s General Counsel) and dated such date, covering such matters as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfiedAdministrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental LenderCommitment Agreement.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15above, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant to each Incremental Amendment Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent which designation may be made in letters (not to be unreasonably withheldi.e., delayed or conditionedA, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., ▇-▇, ▇-▇, ▇-▇, ▇-▇, etc.), provided that the parties to a given Incremental Amendment Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment Commitment Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins Weighted Average Life to Maturity as the Tranche of Term Loans to which the new Incremental Term Loans are being added, and shall bear interest at the same rates (i.e., have the same Applicable Margins and other interest rate terms) applicable to such Tranche;
(ii) the new Incremental Term Loans shall have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Term Loan Repayment of the respective Tranche proportionately, provided that any Scheduled Term Loan Repayments relating to Incremental Term Loans being added to the Tranche of Initial Term Loans shall be determined in accordance with Section 4.02(b)); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.091.02, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche, and so that the existing Lenders with respect to such Tranche continue to have the same participation (after giving effect to by amount) in each Borrowing as they had before the incurrence making of such the new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basisof such Tranche. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans the same to the then outstanding Borrowings of LIBO Rate Loans of such TrancheEurodollar Loans, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Eurodollar Loans of such Tranche and which will end on the last day of such Interest Period).
(d) Upon each increase in the Revolving Loan Commitments pursuant to this Section 2.11, each Lender with a Revolving Loan Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing an Increased Revolving Loan Commitment, and each such Lender with an Increased Revolving Loan Commitment will automatically and without further act be deemed to have assumed, a portion of such existing Lender’s participations hereunder in the Letter of Credit Outstandings and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letter of Credit Outstandings and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Loan Commitment will equal the RL Percentage of such additional Lender (after giving effect to such Increased Revolving Loan Commitments) and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Revolving Loan Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Increased Revolving Loan Commitments), which irregular interest periods prepayment shall be permitted notwithstanding anything accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.08. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretosentence.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may Representative may, on behalf of any Borrower, at any time and or from time to time after the Closing Date, by notice to Administrative Agent (an “Incremental Loan Request”), request (A) one or more Lenders new commitments which may be of the same Class as any outstanding Term Loans (a “Term Loan Increase”) or a new Class of term loans (collectively with any Term Loan Increase, the “Incremental Term Commitments”) and/or (B) one or more Eligible Transferees who will become Lenders) to provide an increase increases in the amount of the Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectivelyTerm Commitments, the “Incremental FacilitiesCommitments”) to Borrower and), subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount not to exceed the sum of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate greater of interest applicable to (1) $63,000,000 and (2) 100% of Consolidated Adjusted EBITDA for the Revolving Commitment Increase shall be most recently completed Test Period (calculated on a Pro Forma Basis) minus any amounts previously utilized in reliance on this Fixed Incremental Amount (and not redesignated) and the same as amount of Incremental Equivalent Debt incurred in lieu thereof (and not redesignated) (the rate of interest applicable to the Initial Revolving Loans, “Fixed Incremental Amount”) plus (B) unused line fees, fronting fees and letter of credit participation fees applicable to an unlimited amount (the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase“Incremental Incurrence-Based Amount”), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (Pro Forma Basis after giving effect to the incurrence of any such new NAI-1537228099v31537241654v2 Incremental Term Loans pursuant to Section 2.01(b)(assuming the full amount of any such Indebtedness in the form of a revolving credit facility is drawn) on a pro rata basis. To (without netting the extent the provisions cash proceeds of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add any borrowing under any such Incremental Term Loans to or Revolving Commitment Increase not promptly applied for the then outstanding Borrowings specified transaction in connection with such incurrence upon receipt thereof in calculation thereof), the Total Net Leverage Ratio does not exceed 4.25:1.00 as of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Periodthe most recently completed Test Period (calculated on a Pro Forma Basis) (this clause (B), which irregular interest periods shall be permitted notwithstanding anything the “Incremental Ratio Debt Basket”), plus (C) any voluntary prepayments and buybacks (limited to the contrary in this Agreement. All determinations by any the Administrative Agent actual amount of cash paid) of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Initial Term Loans then outstanding so long as:
(i) and the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed and voluntary prepayments of the Revolving Loans (to the extent accompanied by permanent commitment reductions thereto), payments utilizing the yank-a-bank provisions of the Credit Documents, in each case prior to such time other than any such voluntary prepayments (and commitment reductions), and buybacks to the extent financed with the proceeds of long term Indebtedness (other than any revolving Indebtedness) or any Specified Equity Contribution (this clause (C), the “Prepayment Amount”) (the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinancedA), (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancingB), and (zC) fees and expenses being referred to herein as the “Incremental Cap”), whereupon Administrative Agent shall promptly deliver a copy of such request to each of the Lenders; provided For purposes of the foregoing, (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar feesI) related the Borrower Representative may elect to use the Incremental Incurrence-Based Amount prior to the establishment Fixed Incremental Amount and the Prepayment Amount, and if the Fixed Incremental Amount and/or the Prepayment Amount, on the one hand, and the Incremental Incurrence-Based Amount, on the other hand, are each available and the Borrower Representative does not make an election, the Borrower Representative will be deemed to have elected to use the Incremental Incurrence-Based Amount first and (II) the Incremental Incurrence-Based Amount will be calculated without regard to any incurrence of Indebtedness under the Fixed Incremental Amount and/or Prepayment Amount concurrently with the incurrence of any amounts in reliance on the Incremental Incurrence-Based Amount; provided, further that any portion of Incremental Credit Facilities incurred other than under the Incremental Incurrence-Based Amount may be re-designated at any time, as the Borrower Representative may elect from time to time, as incurred under the Incremental Incurrence-Based Amount if the Borrowers meet the applicable ratio under the Incremental Incurrence-Based Amount at such time on a pro forma basis, at any time subsequent to the incurrence of such Incremental Term LoansCredit Facility by written notice to the Administrative Agent on such date. (for purposes of clarity, with any such redesignation having the effect of increasing the Borrower’s ability to incur Indebtedness under the Fixed Incremental Amount and/or the Prepayment Amount, as applicable, as of the date of such redesignation by the amount of such Indebtedness so redesignated).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”)time, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or establish Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Pari Passu NotesBusiness Acquisition, Permitted Pari Passu Loans New Project or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such dateany other acquisition or similar Investment that is not prohibited by this Agreement, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (ythe definitive agreement with respect to such Permitted Business Acquisition, New Project, acquisition or similar Investment is entered into) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the from one or more Incremental Term Loan Commitments being provided thereunder Lenders and/or Incremental Revolving Facility Lenders (which Tranche shall be a new Tranche (i.e., not the same as may include any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(cLender) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if willing to be incurred as a new Tranche of Incremental Term Loans, provide such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and and/or Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Facility Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to in their own discretion; provided, that each Incremental Amendment shall constitute Revolving Facility Lender providing a new Tranche, which commitment to make revolving loans shall be separate and distinct from subject to the existing Tranches pursuant to this Agreement; provided that, with the consent approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not to be unreasonably withheld, delayed withheld or conditioned), the parties to delayed) unless such Incremental Revolving Facility Lender is a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto Revolving Facility Lender. Such notice shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
set forth (i) the amount of the Incremental Term Loans Loan Commitments and/or Incremental Revolving Facility Commitments being established (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to be made pursuant to the remaining Incremental Amount or, in each case, such Incremental Amendment shall have lesser amount approved by the same BorrowerAdministrative Agent), the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new date on which such Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being addedbecome effective, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the date same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of the making of such new Incremental Term LoansLoan Commitments, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add whether such Incremental Term Loans Loan Commitments are to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods be (i.e., an Interest Period that began during an Interest Period then applicable x) commitments to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and make term loans on the same terms) and
(ii) terms as the amount of any Incremental Term B Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental “Other Term Loans”).
Appears in 1 contract
Incremental Commitments. At any time following the earlier of (ax) completion of the syndication of the Revolving Loan Facility (as reasonably determined by the Administrative Agent) and (y) 90 days after the Closing Date and prior to the Revolving Facility Maturity Date, the Borrower may at any time and from time to time by written notice to the Administrative Agent elect to request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in to the existing Revolving Facility Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (any such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectivelyincrease, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an Facility Commitments”) and/or may request that commitments be made in respect of term loans (the “Incremental FacilityTerm Facility Commitments” and collectivelytogether with the Incremental Revolving Facility Commitments, if any, the “Incremental FacilitiesCommitments”) to Borrower and), subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitmentamount, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e.collectively, not the same as any existing Tranche of Incremental Term Loansto exceed $250.0 million, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loansor, in each case, taken a lesser amount in integral multiples of $5.0 million. Such notice shall specify the date (an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments, and in the case of Incremental Term Facility Commitments, the date the Incremental Term Loans, shall be made available, which shall be a date not less than 5 Business Days (or such lesser number of days as a whole, that are not materially more favorable may be agreed to by the Administrative Agent in its sole discretion) after the date on which such notice is delivered to the lenders providing such Incremental Term Loans than Administrative Agent. The Borrower shall notify the provisions applicable to Administrative Agent in writing of the existing Term Loans identity of each Revolving Facility Lender or as are otherwise other financial institution (which in any event shall not be the Borrower or an Affiliate of the Borrower) reasonably satisfactory acceptable to the Administrative Agent, (ix) and in the terms and provisions case of any Person committing to any Incremental Revolving Commitment Increase shall be identical Facility Commitment, reasonably acceptable to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank Banks and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment Lenders (each, an “Incremental Revolving Facility Lender,” an “Incremental Term Lender”, or generally, an “Incremental Lender”, as applicable) to whom the Incremental Commitments have been (in accordance with the prior sentence) allocated and the amounts of such allocations; provided that any Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment. Such Incremental Commitments shall become effective as of such Increased Amount Date, and in the case of Incremental Term Facility Commitments, such new Loans in respect thereof (“Incremental Term Loans”) shall execute be made on such Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Commitments and deliver Incremental Term Loans; (ii) the representations and warranties contained in Article III and the other Loan Documents shall be true and correct in all material respects on and as of the Increased Amount Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall have been true and correct in all material respects as of such earlier date; (iii) the Borrower and its Restricted Subsidiaries shall be in compliance, on a Pro Forma Basis after giving effect to such Incremental Commitments (assuming the Revolving Facility Commitments, including any Incremental Revolving Facility Commitments, are fully drawn) and Incremental Term Loans, with the Financial Performance Covenants recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries; (iv) such increase in the Incremental Commitments shall be evidenced by one or more joinder agreements executed and delivered to Administrative Agent by each Incremental Lender, as applicable, and each shall be recorded in the register, each of which shall be reasonably satisfactory to the Administrative Agent an and subject to the requirements set forth in Section 2.17(e); (v) the Borrower shall make any payments required pursuant to Section 2.16 in connection with the provisions of the Incremental Amendment Commitments; and (which vi) the Borrower and its Affiliates shall not require be permitted to commit to or participate in any Incremental Commitments or make any Incremental Term Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any joinder agreements in connection with any Incremental Commitments as described in the preceding sentence, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Commitments and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments without the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to exceed the Incremental Amount available at the time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of initial incurrence of the Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided that each Incremental Revolving Facility Lender providing an Incremental Revolving Facility on the date of the incurrence thereof Commitment shall not exceedbe subject, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction extent the same would be required for an assignment under Section 9.04, to the approval of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld, delayed or conditioned). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are requested to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other commitments to make term loans with terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable identical to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) Loan Commitments initially incurred by Borrower shall be Obligations of Borrower under this Agreement and or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans Loan Commitments initially incurred under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) this Agreement (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any Assumption Agreement and such other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to documentation as the Administrative Agent shall reasonably specify to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, evidence the Incremental Term Loan Commitments provided by an Commitment of such Incremental Term Lender or and/or Incremental Lenders, as Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent terms of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the applicable Incremental Term Loans made pursuant thereto shall constitute part ofand/or Incremental Revolving Facility Commitments; provided, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfiedthat:
(i) the Incremental Term any commitments to make additional Initial Revolving Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins terms as the Tranche of Term Loans to which the new Incremental Term Loans are being added;Initial Revolving Loans,
(ii) the new Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans (provided, that if such Other Term Loans rank junior (x) in right of security with the Initial Revolving Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and (y) in right of payment with the Initial Revolving Loans, such Other Term Loans shall be subject to a subordination agreement on customary market terms at the time of issuance thereof) or may be unsecured,
(iii) the final maturity date of any such Other Term Loans (except for any bridge loan that has no amortization payments and the terms of which provide for an automatic (subject to customary conditions) extension of the maturity date to a date that is not earlier than the Revolving Facility Maturity Date then in effect, shall be no earlier than the Revolving Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the applicable Incremental Term Lenders in their sole discretion), such Other Term Loans shall have terms that are current market terms for such type of Indebtedness (as reasonably determined by the same Scheduled Repayment Dates as then remain with respect Borrower in good faith),
(iv) [reserved]
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the Tranche to which such new Incremental Term Loans are being added (option of the Borrower, junior in right of security with the amount of each Scheduled Repayment applicable to Initial Revolving Loans or unsecured (provided, that if such new Incremental Term Other Revolving Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.rank junior
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an Incremental Facility on exceed the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the date of incurrence plus (y) case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and the Issuing Bank (neither of which approvals shall be unreasonably withheld) unless such Incremental Revolving Facility TestLender is a Lender, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5.0 million and a new Tranche minimum amount of $25.0 million or equal to the remaining Incremental Amount), (i.e., not ii) the same as any existing Tranche of Incremental Term Loans, date on which such Incremental Term Loan Commitments or other Term Loansand/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), unless (iii) in the requirements case of Section 2.15(c) Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are satisfiedto be Revolving Facility Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Facility Loans (“Other Revolving Loans”), which designation shall be set forth and (iv) in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche case of Incremental Term LoansLoan Commitments, whether such Incremental Term Loans shall have Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term B Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding “Other Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have been delivered (x) the same terms as the Term Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (xii) all fees required to the final maturity date of any Other Term Loans shall be paid in connection therewith at no earlier than the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments)Term B Facility Maturity Date, (yiii) all Incremental Commitment Requirements are satisfiedthe weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, and (ziv) all other conditions set forth the Other Revolving Loans shall rank pari passu or junior in this Section 2.15 right of payment and of security with the Revolving Loans and except as to pricing, amortization and final maturity date, shall have been satisfied. The Administrative Agent shall promptly notify each Lender (x) the same terms as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving NotesFacility Loans, as applicable, will or (y) such other terms as shall be issued at Borrower’s expense reasonably satisfactory to such the Administrative Agent. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental LenderAssumption Agreement, to this Agreement shall be in conformity with the requirements of Section 2.05 (with appropriate modification) amended to the extent needed (but only to the extent) necessary to reflect the new existence and terms of the Incremental Loans Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and Incremental Commitments made by such Incremental Lenderfurnished to the other parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (not ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to be unreasonably withheldthe extent required by the Administrative Agent, delayed or conditioned), consistent with those delivered on the parties Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to a given Incremental Amendment the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably require to assure that the Incremental Term Loans made pursuant thereto and/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans and Revolving Facility Loans, (iii) no Default or Event of Default shall constitute part of, have occurred and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
continuing or would result therefrom and (iiv) the Total Net Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 3.00 to 1.00 after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date thereunder and the same Applicable Margins application of the proceeds therefrom as if made and applied on such date.
(d) Each of the Tranche of Term Loans parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to which the new ensure that (i) all Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental other than Other Term Loans) in the form of additional Term B Loans, and notwithstanding anything to the contrary set forth when originally made, are included in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term B Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of the various outstanding BorrowingsIncremental Revolving Facility Commitments (other than Other Revolving Loans), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates when originally made, are included in each outstanding Borrowing of Term outstanding Revolving Facility Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to the then outstanding Borrowings of LIBO Rate ABR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations reasonably required by any the Administrative Agent of to effect the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (Noranda Aluminum Acquisition CORP)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”)time, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or establish Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Pari Passu NotesBusiness Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (ywhich may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder established (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans on the same terms as the Term B Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans, Term B-2 Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans, Term B-2 Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) all fees required substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the Term B Loans on the Closing Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such Term B Loans on the Closing Date by no more than 0.75%, or if it does so exceed such All-in Yield by more than 0.75% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.75%; provided that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted Term SOFR Rate in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is incurred with a principal amount not in excess of the greater of $470,000,000 and 1.00 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (B) is established for purposes of funding a Permitted Acquisition or New Project, (C) is initially incurred under clauses (i) Schedule 2.01 or (iii) under the definition of “Incremental Amount” and/or (D) has a maturity date that is at least two years after the Term B Facility Maturity Date;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(ix) (A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed modified to reflect “Loan Documents” hereunder and may be memorialized in writing by the revised Incremental Commitments of Administrative Agent and the affected Lenders Borrower and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) solely to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (d) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition, delayed New Project or conditionedany other acquisition or similar Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under the Restatement Agreement and such additional customary documents and filings (including amendments or supplements to the Mortgages and other Collateral Documents, as applicable, and title date-down and modification endorsements, which, in the case of such amendments or supplements and title date-down and modification endorsements, may be delivered on a given post-closing basis to the extent permitted by the applicable Incremental Amendment Assumption Agreement, the relevant Collateral Documents or hereunder) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Benchmark Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) and
in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans does made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not exceed earlier than five Business Days after the sum date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of (x) such Extending Lender. Each Incremental Assumption Agreement shall specify the principal amount terms of the applicable Extended Term Loans effectively being extendedand/or Extended Revolving Facility Commitments; provided, repriced or refinanced, that (yi) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.exc
Appears in 1 contract
Incremental Commitments. (a) Borrower may at any time and The Company may, by written notice to the Agent from time to time time, request Incremental Term Commitments and/or Incremental Revolving Credit Commitments, as applicable, in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders (or one or more Eligible Transferees who will become Lenderswhich may include any existing Lender) willing to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or such Incremental Term Loan Commitments (such Term Loans incurred Advances and/or Incremental Revolving Credit Advances, as the case may be, in connection therewiththeir sole discretion; provided, each, an “that each Incremental Term Loan” and, collectively, the “Lender and/or Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, Credit Lender (which is not an “Incremental Facility” and collectively, the “Incremental Facilities”existing Lender) to Borrower and, shall be subject to the approval requirements of Section 9.07. Such notice shall set forth (A) the amount of the Incremental Term Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (B) the date on which such Incremental Term Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (the “Increased Amount Date”) and (C) (i) whether such Incremental Term Commitments are to be commitments to make term advances (“Other Term Advances”) and/or (ii) whether such Incremental Revolving Credit Commitments are to be Revolving Credit Commitments or commitments to make revolving advances with pricing and/or amortization terms different from the Revolving Facility Advances (“Other Revolving Credit Advances”).
(b) The applicable Borrower and such other Loan Parties as may be required with respect to such Incremental Term Commitment or Incremental Revolving Credit Commitment and each Incremental Term Lender and/or Incremental Revolving Credit Lender shall execute and deliver to the Agent an Incremental Assumption Agreement, guarantor acknowledgments and consents, Notes (if requested in advance by the applicable Lenders) and such other closing or corporate documentation as the Agent (acting at the direction of the applicable Incremental Lenders) shall reasonably request. Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Advances and/or Incremental Revolving Credit Advances to be made thereunder, and shall be made (x) on terms and conditions contained in this Agreement agreed to by the applicable Borrower and the applicable Incremental Lenders, and in a form that is reasonably acceptable to the relevant Incremental Amendment, provide commitments and/or make Loans pursuant theretoAgent; it being understood and agreed, howeverprovided, that (i) no Lender shall be obligated to provide an Incremental the Other Term Advances and Other Revolving Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase Advances shall rank pari passu in right of payment and of security with the Initial Term Advances and Revolving LoansCredit Advances, as applicable, (ii) the final maturity date of (A) any Other Term Advances shall be no earlier than the scheduled Termination Date applicable to the Term B Facility and Euro Term B Facility (as set forth in clause (c) of the definition of “Termination Date”) and/or (B) any Other Revolving Facility Advances shall be no earlier than the scheduled Termination Date applicable to the Revolving Credit Facilities (under clause (a)(i) of the definition of “Termination Date”), (iii) the weighted average life to maturity of any Other Term Advances shall be no shorter than the weighted average life to maturity of the Term B Advances or Euro Term B Advances, (iv) the Other Revolving Facility Advances shall require no scheduled amortization or mandatory commitment reductions prior to the scheduled Termination Date applicable to the Revolving Credit Facilities (under clause (a)(i) of the definition of “Termination Date”), (v) no Default shall have occurred and be continuing or would result from such Incremental Term Advances and/or Incremental Revolving Credit Advances and (vi) in the event that the Applicable Margin for any Other Term Advances or Other Revolving Facility Advances is more than 50 basis points greater than the Applicable Margin for the Term Advances or Revolving Credit Advances, as applicable, then the Applicable Margin for the Term Advances or Revolving Credit Advances, as applicable, shall be increased to the extent necessary so that the Applicable Margin for the Other Term Advances or Other Revolving Facility Advances is no more than 50 basis points greater than the Applicable Margin for the Term Advances or Revolving Credit Advances, as applicable; provided further, that in determining the Applicable Margin applicable to the Term Advances, Revolving Credit Advances, Other Term Advances and Other Revolving Credit Advances, (x) the maturity, interest rate and original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as OID) payable by such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable Borrower to the Lenders providing such Revolving Commitments than in the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower primary syndication thereof shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) included (with respect OID being equated to Incremental Term Loans) and applicable Incremental Amendment (with respect interest based on an assumed four-year life to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitmentsmaturity), (y) all Incremental Commitment Requirements are satisfied, customary arrangement or commitment fees payable to the arrangers (or their affiliates) of such loans shall be excluded and (z) all other conditions set forth if the Eurocurrency Rate “floor” applicable to the Other Term Advances or Other Revolving Facility Advances is higher than the Eurocurrency Rate “floor” applicable to the Term B Advances or Euro Term B Advances or Revolving Credit Advances, as applicable, then the amount of such difference shall be deemed to be an increase in the Applicable Margin for the Other Term Advances or Other Revolving Facility Advances for purposes of determining compliance with this Section 2.15 shall have been satisfiedclause (vi) (it being agreed, however, that the Company may elect to satisfy, at least in part, the requirements of this clause (vi) by increasing the Eurocurrency Rate “floor” applicable to the relevant existing Term B Advances or Euro Term B Advances or Revolving Credit Advances to a rate that is no greater than the Eurocurrency Rate “floor” applicable to the applicable Other Term Advances and Other Revolving Credit Advances). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, and at such timeupon the effectiveness of any Incremental Assumption Agreement, (i) Schedule 2.01 this Agreement shall be deemed modified amended to the extent (but only to the extent) necessary to reflect the revised Incremental Commitments existence and terms of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided and/or Incremental Revolving Credit Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, Agent with the Company’s consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned)) and furnished to the other Persons then party to this Agreement.
(c) Notwithstanding the foregoing, the parties to a given Incremental Amendment may specify therein that the no Incremental Term Loans made pursuant thereto Commitment or Incremental Revolving Facility Commitment shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
become effective under this Section 2.04 unless (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of such effectiveness, the making of such new Incremental Term Loans, representations and notwithstanding anything to the contrary warranties set forth in Section 2.094.01 shall be true and correct and the Agent (acting at the direction of the applicable Incremental Lenders) shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Agent shall have received legal opinions, board resolutions and other closing certificates and documentation as required by the relevant Incremental Assumption Agreement and consistent with those delivered on the Closing Date under Section 3.01 and such new additional documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Agent may reasonably require to assure that the Incremental Term Loans shall Advances and/or Incremental Revolving Facility Advances are secured by the Collateral ratably with the existing Term Advances and Revolving Credit Advances, and (iii) the Borrowers would be added in Pro Forma Compliance, calculated as of the last day of the most recently ended fiscal quarter for which financial statements delivered under Section 5.01(a)(i) are available, determined on a Pro Forma Basis giving effect to such Incremental Term Commitment and/or Incremental Revolving Credit Commitments (assuming for such purpose that any such Incremental Revolving Credit Commitments are fully drawn) and form part ofthe Advances to be made thereunder and the application of the proceeds therefrom as if made and applied on such date.
(d) Each of the parties hereto hereby agrees that the Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Advances and/or Incremental Revolving Facility Advances (other than Other Term Advances or Other Revolving Credit Advances), when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) Advances or Revolving Facility Advances on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, from time to time after the Closing Date, by written notice to the Administrative Agent request the establishment of (a) one or more Lenders new term loan commitments (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a the “Revolving Commitment IncreaseNew Term Loan Commitments”), (b) one or more additional Tranches tranches of revolving credit commitments (the “Additional Revolving Credit Commitments”) and/or (c) one or more increases in the amount of the Revolving Credit Commitments (an each such increase, a “Additional/Replacement Revolving Commitment”) or Incremental Credit Commitment Increase” and, together with the New Term Loan Commitments and the Additional Revolving Credit Commitments, the “Incremental Commitments”), in an aggregate amount for all such Incremental Commitments established following the Closing Date not in excess of the Incremental Facility Amount. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the Incremental Commitments shall be effective, which shall be a date not less than ten Business Days (or such shorter period as is acceptable to the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may seek Incremental Commitments from existing Lenders or from by any other bank, financial institution, other institutional lender or other Person that is an eligible assignee pursuant to Section 13.6(b) (any such other Person being called an “Additional Lender”); provided, that the Administrative Agent (and, solely with respect to any Additional Revolving Credit Commitment and/or Revolving Credit Commitment Increase, each Letter of Credit Issuer) shall have consented to such Additional Lender’s providing any Incremental Commitments to the extent such consent would be required under Section 13.6(b) for an assignment of Loans or Commitments, as applicable, to such Additional Lender; provided, further, that any Lender offered or approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide an Incremental Commitment.
(b) Such Incremental Commitment shall become effective as of such Increased Amount Date; provided that (1) the representations and warranties set forth herein and in the other Credit Documentation shall be true and correct in all material respects on and as of such Increased Amount Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, with respect to any Incremental Commitments the Net Cash Proceeds of which are used to fund a Permitted Acquisition substantially concurrently upon the receipt thereof, unless otherwise agreed by the Borrower, the Administrative Agent and the Lenders providing the applicable Incremental Commitment, the only representations and warranties relating to the Credit Parties the making of which shall be a condition to the making of such Incremental Commitments shall be the representations and warranties set forth in clause (b) of the definition of Closing Date Representations and the representations and warranties contained in the purchase agreement relating to such Permitted Acquisition as are material to the interests of the Lenders but only to the extent that the Borrower or any of its Affiliates have the right to terminate its or their obligations under such purchase agreement as a result of a breach of such representations and warranties in such purchase agreement); (2) the Incremental Commitments (and the Loans made pursuant thereto) shall be secured on a pari passu basis with the Original Term Loans, the Original Revolving Credit Commitments and the Original Revolving Credit Loans incurred in connection therewith, and shall be secured only by the Collateral securing the Obligations; (3) no Parent Guarantor nor any Restricted Subsidiary shall guarantee the Incremental Commitments or Loans made pursuant thereto unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor on the Increased Amount Date); (4) no Default or Event of Default shall exist on such Increased Amount Date immediately prior to or after giving effect to such Incremental Commitments and to the making of any Loans pursuant thereto; (5) the Incremental Commitments and related Loans made pursuant thereto shall be effected pursuant to one or more amendments (each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental FacilitiesAmendment”) to Borrower this Agreement and, as appropriate, the other Credit Documents, executed by the Parent Guarantors, the Borrower, each Lender and each Additional Lender providing such New Term Loan Commitments, Additional Revolving Credit Commitments or Revolving Credit Commitment Increase, as applicable (each of which shall be recorded in the Register and shall be subject to the terms requirements set forth in Section 5.4(d)), and conditions contained the Administrative Agent; (6) the Borrower shall make any payments required pursuant to Section 2.12 in this Agreement connection with the Incremental Commitments, as applicable, and in (7) the relevant Senior Secured Leverage Ratio (provided that the Senior Secured Leverage Ratio for such purpose shall exclude any cash or cash equivalents constituting proceeds of any Loans made under any proposed Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that Commitments which may otherwise reduce the amount of Consolidated Net Debt) does not exceed (i) no Lender shall be obligated with respect to provide an Incremental Facility as a result of any Commitments (including related Loans) not to exceed $200,000,000 in the aggregate for all such request by BorrowerIncremental Commitments established following the Closing Date, 4.25 to 1.00 and (ii) any Lender with respect to Incremental Commitments (including related Loans) not to exceed an additional $150,000,000 in the aggregate for all such Incremental Commitments established following the Closing Date, 3.75 to 1.00, in each case, as of the applicable Increased Amount Date determined on a Pro Forma Basis (which, for the avoidance of doubt, shall be calculated as if any Eligible Transferee who will become proposed additional Term Loans and/or Revolving Commitments, as applicable, had been outstanding and fully borrowed). Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from Term Loans outstanding on the date on which such New Term Loans are made shall be designated as a Lender) may so provide an separate Class of Term Loans for all purposes of this Agreement. Each of the parties hereto hereby agrees that each Incremental Facility Amendment may, without the consent of any other LenderLenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.17.
(c) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (i) the Maturity Date of any New Term Loans shall not be earlier than the then-existing Latest Maturity Date with respect to any Existing Class of Term Loans, (ii) any New Term Loans shall not have a shorter Weighted Average Life than the Weighted Average Life to Maturity of any then-outstanding Term Loans, (iii) each Incremental Facility if the Initial Yield on any New Term Loans exceeds the Initial Yield then in effect for any Existing Class (or Classes) of Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Term Loans shall automatically be denominated in Dollars or an Alternative Currencyincreased by the Yield Differential, effective upon the making of the New Term Loans and (iv) any New Term Loans shall otherwise have the amount same terms and conditions of the Term Loans then in effect or such other terms and conditions reasonably satisfactory to the Administrative Agent. On any Increased Amount Date on which any New Term Loan Commitments of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000Class are effective, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrenceforegoing terms and conditions, (i) each Lender with a New Term Loan Commitment (each, a “New Term Loan Lender”) of any Class shall make a Loan to the Borrower (a “New Term Loan”) in an amount equal to its New Term Loan Commitment of such Class, and (ii) each New Term Loan Lender of any Class shall become a Lender hereunder with respect to the New Term Loan Commitment of such Class and the New Term Loans of such Class made pursuant thereto.
(d) Notwithstanding the foregoing, without the prior written consent of the Required Lenders, (A) any Revolving Credit Commitment Increase shall be on the exact same terms (including with respect to commitment reductions and interest rates) as the Original Revolving Credit Commitments, and (B) (i) the Maturity Date of any Additional Revolving Credit Commitments shall not be earlier than, and shall not require mandatory commitment reduction (except ratably with the Original Revolving Credit Commitments) prior to, the then-Based Incremental Facility Testexisting Latest Maturity Date with respect to any Existing Class of Revolving Credit Loans, (ii) if the Initial Yield on any Incurrence-Based Incremental Amount that Additional Revolving Credit Commitments (and related loans) exceeds the Initial Yield then in effect for any Existing Class (or Classes) of Revolving Credit Loans by more than 50 basis points, then the Applicable ABR Margin and the Applicable LIBO Margin then in effect for such Existing Class (or Classes) of Revolving Credit Loans shall automatically be increased by the Yield Differential, effective upon the effectiveness of such Additional Revolving Credit Commitments, (iii) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of the Revolving Credit Loans under any Additional Revolving Credit Commitments shall be made on a pro rata basis with any borrowings and repayments of the Revolving Credit Loans then in effect (the mechanics for which may be incurred thereunder on implemented through the applicable Incremental Amendment and may include technical changes related to the borrowing and repayment procedures of the Revolving Credit Loans then in effect) and (iv) any Additional Revolving Credit Commitments shall otherwise have the same terms and conditions of the Revolving Credit Commitments then in effect or such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with other terms and conditions reasonably satisfactory to the Administrative Agent, any Tranche .
(e) Each of the parties hereto hereby agrees that the Administrative Agent may, with the consent of the Borrower (not to be unreasonably withheld), take any and all action as may be reasonably necessary to ensure that all New Term Loans that, pursuant to the applicable Incremental Term Loan Commitments being provided thereunder (which Tranche shall Amendment, are to be a new Tranche (i.e., not of the same as any existing Tranche Class of Incremental an Existing Class of Term Loans, Incremental when originally made, are included in each Borrowing of such Existing Class of Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Borrowing of LIBO Rate Term Loans to be converted into a Borrowing of ABR Term Loans on the date the applicable New Term Loan Commitments is made, or other by allocating a portion of each such New Term Loan to each outstanding Borrowing of LIBO Rate Term Loans on a pro rata basis. Any conversion of Borrowing of LIBO Rate Term Loans to ABR Term Loans required by the preceding sentence shall be subject to Section 2.12. If any New Term Loan is to be allocated to an existing Interest Period for a Borrowing of LIBO Rate Term Loans), unless then the requirements of Section 2.15(c) are satisfied), which designation interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Amendment. In addition, (viii) if to be incurred as a new Tranche of Incremental the extent any New Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.5(b) required to be made after the making of such Incremental New Term Loans shall have be ratably increased by the same terms as each other Tranche aggregate principal amount of such New Term Loans as and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation.
(f) Upon each Revolving Credit Commitment Increase pursuant to this Section, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect immediately to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Credit Commitment Increase be prepaid from the relevant Incremental Amendmentproceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments accompanied by accrued interest on a ratable basis with the other Tranches of Term Revolving Credit Loans (unless the holders of the Incremental Term Loans of being prepaid and any Tranche agree to take a lesser share of costs incurred by any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (Lender in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied2.12. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall promptly notify each Lender as not apply to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding sentence shallsentence. This Section 2.17 shall supersede any provisions in Section 5.2, absent manifest error, be final and conclusive and binding on all parties hereto.
(d13.1 or 13.8(a) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loanscontrary.
Appears in 1 contract
Incremental Commitments. (a) Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject Subject to the terms and conditions set forth herein, so long as no Default or Event of Default shall have occurred and be continuing or shall result after giving effect to such Incremental Commitments, the Borrower shall have the right from the Closing Date until the date one Business Day prior to the Maturity Date, to incur additional Indebtedness under this Credit Agreement in the form of (a) one or more increases to the Aggregate Revolving Committed Amount (“Incremental Revolving Commitments” and the loans advanced thereunder, “Incremental Revolving Loans”) or (b) one or more term loan commitments or one or more increases in any then-existing term loan commitments (“Incremental Term Commitments” and the loans advanced thereunder, “Incremental Term Loans”; any Incremental Term Commitments, together with any Incremental Revolving Commitments, the “Incremental Commitments” and any Incremental Term Loans, together with any Incremental Revolving Loans, the “Incremental Loans”), by an aggregate amount of up to $500,000,000.
(b) The following terms and conditions shall apply to all Incremental Commitments and Incremental Loans: (a) the Incremental Loans shall constitute Credit Party Obligations, (b) (i) any Incremental Revolving Commitments shall be on the same terms (other than with respect to any upfront fees or arrangement fees) as the existing Revolving Commitments and (ii) any Incremental Term Loans shall have an amortization schedule, mandatory prepayment requirements (which mandatory prepayments shall be permitted to be applied, first, to Incremental Term Loans, and second, to any Revolving Loans), interest rates, rate floors, upfront fees, funding discounts, original issue discounts and prepayment premiums as determined by Hyatt, the Administrative Agent and the institutions providing the applicable Incremental Term Commitments, (c) any such Incremental Commitments and Incremental Loans shall be entitled to the same voting rights as the existing Commitments and Loans and shall be entitled to receive proceeds of prepayments on the same basis as comparable Loans, (d) any such Incremental Commitment shall be obtained from existing Lenders or from other banks, financial institutions or investment funds, in each case in accordance with the terms set forth below, (e) such Incremental Commitments shall be in a minimum principal Dollar Amount (determined as of the most recent Revaluation Date) of $50,000,000 and integral multiples of $5,000,000 in excess thereof, (f) the proceeds of any Incremental Loan will be used in accordance with Section 3.13, (g) the Borrower shall execute such promissory notes as are necessary and requested by the Lenders to reflect the Incremental Commitments and Incremental Loans and (h) the representations and warranties made by the Borrower herein or in any other Credit Document or which are contained in any certificate furnished at any time under or in connection herewith or therewith shall be true and correct in all material respects on and as of the date of such Extension of Credit as if made on and as of such date (except for those which expressly relate to an earlier date in which case such representations and warranties shall be true and correct as of such earlier date).
(c) The Borrower may invite existing Lenders or other banks, financial institutions and investment funds that are not Lenders and that are reasonably acceptable to the Administrative Agent and that would satisfy the same criteria that would be required for such bank, financial institution or investment fund to be an “Eligible Assignee” to join this Credit Agreement as Lenders to provide any Incremental Commitments and Incremental Loans (any lender in respect of the relevant Incremental AmendmentCommitments and Incremental Loans, provide commitments and/or make Loans pursuant thereto; it being understood and agreedan “Incremental Lender”), however, that provided (i) no existing Lender shall be obligated have any obligation to provide an Incremental Facility as a result all or any portion of any such request by Borrower, Incremental Commitments or Incremental Loans and (ii) such other banks, financial institutions and investment funds that are not existing Lenders shall enter into such joinder agreements to give effect thereto as the Administrative Agent and the Borrower may reasonably request and shall thereafter be deemed to be Lenders. The existing Lenders shall make such assignments (which assignments shall not be subject to the requirements set forth in Sections 10.6(c) or 10.6(e)) of the outstanding Loans (excluding Competitive Loans) and Participation Interests to the Incremental Lenders providing any Incremental Revolving Commitment so that, after giving effect to such assignments, each Lender (including the Lenders providing the Incremental Revolving Commitments) will hold Loans and Participation Interests equal to its Commitment Percentage of all outstanding Loans and LOC Obligations (and accordingly the Borrower shall pay any Eligible Transferee who will become a Lenderadditional amounts required pursuant to Section 2.17).
(d) may so provide an Hyatt, the Administrative Agent and the applicable Incremental Facility Lenders may, without the consent of any other Lender, enter into an amendment to any Credit Document (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable “Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to effect such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal amendments to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same Documents as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to necessary or appropriate, in the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right reasonable opinion of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations to effect the provisions of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant GuarantySection 2.5. The Administrative Agent is authorized to enter into, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction behalf of the relevant conditions set forth in Lenders, any Incremental Amendment. The provisions of this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c2.5(d) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes supersede any other provisions of this Agreement and the other applicable Credit Documents Documents, including Section 2.12 and (xiv) all Incremental Commitment Requirements are satisfiedSection 10.1.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (Hyatt Hotels Corp)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the incurrence thereof shall not exceedBorrower, when taken together with any at the time of incurrence of Permitted Pari Passu Notesthe Incremental Loans thereunder) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, Permitted Pari Passu Loans or Permitted Junior Debt pursuant as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Banks and the Swingline Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, Lender is a Revolving Facility Lender. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are requested to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B”) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (Eiv) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving LoansIncremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) the commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differamortization, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have participation in mandatory prepayments and/or other terms that may differ different from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans (provided, that if such Other Term Loans rank junior in right of security with the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, shall not be subject to clause (vii) below),
(iii) the final maturity date of any such Other Term Loans shall be no earlier than the Term B Facility Maturity Date and, except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Term ANNEXEXHIBIT A Lenders in their sole discretion), shall have (x) substantially similar terms as the Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), shall have (x) all fees required substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Other Term Loan incurred prior to the twelve month anniversary of the 2021 Effective Date pursuant to clause (a) of this Section 2.21 that ranks pari passu in right of security with the Term B Loans, the All-in Yield shall be the same as that applicable to the Term B Loans on the 2021 Effective Date, except that the All-in Yield in respect of any such Other Term Loan may exceed the All-in Yield in respect of such Term B Loans on the 2021 Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “SOFR floor” being applicable to such Other Term Loans, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted Term SOFR Rate in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, and, with respect to such excess, the “SOFR floor” applicable to the outstanding Term B Loans shall be increased to an amount not to exceed the “SOFR floor” applicable to such Other Term Loans prior to any increase in the Applicable Margin applicable to such Term B Loans then outstanding;
(iviii) Schedule 2.01 (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder; and
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party. ANNEXEXHIBIT A Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed modified “Loan Documents” hereunder and may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to reflect the revised Incremental Commitments of the affected Lenders be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition that is permitted by this Agreement, delayed or conditionedno Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred or be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to a given Incremental Amendment the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term SOFR Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or ANNEXEXHIBIT A Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) andin the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”) or an Incremental Revolving Facility Commitment for such Lender if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment” and any Revolving Facility Loans made thereunder, “Extended Revolving Loans”). Each Pro Rata Extension Offer shall specify the date on which the Borrower proposes that the Extended Term Loan shall be made or Extended Revolving Facility Commitment shall become effective, which shall be a date not earlier than five Business Days after the date on which notice is delivered to the Administrative Agent (or such shorter period agreed to by the Administrative Agent in its reasonable discretion).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided, that (i) except as to interest rates, fees and any other pricing terms (which interest rates, fees and other pricing terms shall not be subject to the provisions set forth in Section 2.21(b)(vii)), and amortization, final maturity date and participation in prepayments and commitment reductions (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans shall have (x) the same terms as an existing Class of Term Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the amount final maturity date of any Incremental Extended Term Loans does not exceed shall be no earlier than the sum latest Term Facility Maturity Date in effect on the date of incurrence, (iii) the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term Loans to which such offer relates, (iv) except as to interest rates, fees, any other pricing terms, participation in mandatory prepayments and commitment reductions and final maturity (which shall be determined by the Borrower and set forth in the Pro Rata Extension Offer), any Extended Revolving Facility Commitment shall have (x) the principal amount same terms as an existing Class of the applicable Term Loans effectively being extended, repriced Revolving Facility Commitments or refinanced, (y) fees and expenses (including have such other terms as shall be reasonably satisfactory to the Administrative Agent and, in respect of any prepayment premiumother terms that would affect the rights or duties of any Issuing Bank or Swingline Lender, penalties or other call protection) related such terms as shall be reasonably satisfactory to such extensionIssuing Bank or Swingline Lender, repricing (v) any Extended Revolving Facility Commitments may participate on a pro rata basis or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.a
Appears in 1 contract
Sources: Successor Agent Appointment and Agency Transfer Agreement (Rackspace Technology, Inc.)
Incremental Commitments. (a) The Borrower may at any time and Agent may, by written notice to the Administrative Agent from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”)time, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or establish Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant with respect to any Borrowers in an amount not to exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the incurrence thereof shall not exceedBorrower Agent, when taken together with any at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Pari Passu NotesBusiness Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (ywhich may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04(g) and the Issuing Banks (which approvals shall not be unreasonably withheld or delayed), in each case, unless such Incremental Revolving Facility Test, any Incurrence-Based Lender is a Revolving Facility Lender prior to the establishment of such Incremental Amount that may be incurred thereunder on such date, Revolving Facility Commitments. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder established (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum aggregate amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, without limitationwhether such Incremental Term Loan Commitments are to be (x) commitments to make term loans on the same terms as the 2024 Refinancing Term B Loans or (y) commitments to make term loans with pricing, the following: maturity, amortization, participation in mandatory prepayments and/or other terms different from (Ax) the rate of interest applicable at all times on and prior to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving First Amendment Effective Date (before giving effect thereto), Term B Loans, (By) unused line fees, fronting fees at all times on and letter of credit participation fees applicable to after the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate First Amendment Effective Date (after giving effect thereto) and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Second Amendment Effective Date, the 2023 Refinancing Term B Loans and (z) at all times on and after the Second Amendment Effective Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increasesthereto), the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental 2024 Refinancing Term Loans and Incremental Revolving B Loans (and all interestsuch term loans at any given time, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative The Borrower Agent and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional 2024 Refinancing Term B Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the 2024 Refinancing Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower Agent, junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term Facility Maturity Date applicable to the 2024 Refinancing Term B Loans and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower Agent and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the 2024 Refinancing Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the 2024 Refinancing Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower Agent, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower Agent and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) all fees required substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the 2024 Refinancing Term B Loans on the Second Amendment Effective Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such 2024 Refinancing Term B Loans on the Second Amendment Effective Date by no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such 2024 Refinancing Term B Loans shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “Term SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, and, with respect to such excess, the “Term SOFR floor” applicable to the outstanding 2024 Refinancing Term B Loans shall be increased to an amount not to exceed the “Term SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such 2024 Refinancing Term B Loans then outstanding; provided, further, that this clause (vii) shall not be applicable to any Subject Term Loan that (A) is initially incurred under clauses (i) Schedule 2.01 or (iii) under the definition of “Incremental Amount” and/or (B) has a maturity date that is at least two (2) years after the Term Facility Maturity Date applicable to the 2024 Refinancing Term B Loans (this clause (vii), the “MFN Provision”);
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Revolving Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, on a junior basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Other Term Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans, on a junior basis) than the 2024 Refinancing Term B Loans in any mandatory prepayment hereunder; and
(A) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed modified to reflect “Loan Documents” hereunder and may be memorialized in writing by the revised Incremental Commitments of Administrative Agent and, the affected Lenders Borrower Agent and (ii) any other applicable Borrower and furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) solely to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower Agent and (not B) (I) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to be unreasonably withheldfinance any Permitted Business Acquisition or any other similar permitted Investment, delayed or conditionedno Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom or (II) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for any other purpose, no Default or Event of Default shall have occurred or be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments or supplements to the Collateral Documents, as applicable, and modification endorsements, which, in the case of such amendments or supplements and modification endorsements, may be delivered on a given post-closing basis to the extent permitted by the applicable Incremental Amendment Assumption Agreement, the relevant Collateral Documents or hereunder) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrowers agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term SOFR Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower Agent to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower Agent is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including, without limitation, increasing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, (i) and
in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same and (ii) in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments of such Facility are offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower Agent and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loans does not exceed the sum of Loan for such Lender if such Lender is extending an existing Term Loan (x) the principal amount of the applicable such extended Term Loans effectively being extendedLoan, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental an “Extended Term Loans.Lo
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an Incremental Facility on exceed the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the date of incurrence plus (y) case may be, each in their own discretion; provided, that each Incremental Term Lender and Incremental Revolving Facility Lender shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent (which approval shall not be unreasonably withheld) unless such Incremental Facility TestTerm Lender or Incremental Revolving Lender is a Lender, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5.0 million and a new Tranche minimum amount of $25.0 million or equal to the remaining Incremental Amount), (i.e., not ii) the same as any existing Tranche aggregate amount of Incremental Term Loans, all Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable and Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Facility Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) will exist after giving effect to the request (and which shall not exceed $250 million), (iii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitment IncreasesFacility Commitments are requested to become effective (the "Increased Amount Date"), (iv) in the Pro Rata Percentage case of Incremental Revolving Loan Commitments, whether such Incremental Revolving Loan Commitments are to be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Commitments of each Lender may be adjusted to give effect to the total Loans ("Other Revolving Commitment as increased by such Revolving Commitment IncreaseLoans"), and (Ev) in the Revolving Commitment Increase shall rank pari passu in right case of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Incremental Term Loan Commitments, taken as a whole, that whether such Incremental Term Loan Commitments are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving be Term B Loan Commitments or as are otherwise reasonably satisfactory commitments to make term loans with pricing and/or amortization terms different from the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving B Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental "Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied").
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have been delivered (x) the same terms as the Term B Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (iv) the Other Revolving Loans shall rank pari passu or junior in right of payment and of security with the Revolving Loans and, except as to pricing, amortization and final maturity date, shall have (x) all fees required to the same terms as the Revolving Facility Loans, as applicable, or (y) such other terms as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent and (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as but only to the effectiveness of each Incremental Amendment, and at such time, (iextent) Schedule 2.01 shall be deemed modified necessary to reflect the revised Incremental Commitments existence and terms of the affected Lenders Incremental Term Loan Commitments and/or Incremental Revolving Loan Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower's consent (not to be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to be unreasonably withheldthe extent required by the Administrative Agent, delayed or conditioned), consistent with -77- those delivered on the parties Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to a given Incremental Amendment the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably require to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, and be added to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the existing Term B Loans and Revolving Facility Loans and (iii) after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date thereunder and the same Applicable Margins application of the proceeds therefrom as if made and applied on such date the Tranche Total Net Secured Leverage Ratio shall be less than or equal to 4.50:1.00.
(d) Each of Term Loans the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to which the new ensure that (i) all Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental other than Other Term Loans) in the form of additional Term B Loans, and notwithstanding anything to the contrary set forth when originally made, are included in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term B Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of the various outstanding BorrowingsIncremental Revolving Facility Commitments (other than Other Revolving Loans), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates when originally made, are included in each outstanding Borrowing of Term outstanding Revolving Facility Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to the then outstanding Borrowings of LIBO Rate ABR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations reasonably required by any the Administrative Agent of to effect the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the Borrower, at the time of initial incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Loans thereunder) from one or more Incremental Term Loan Commitments being provided thereunder Lenders and/or Incremental Revolving Facility Lenders (which Tranche shall be a new Tranche (i.e., not the same as may include any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(cLender) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if willing to be incurred as a new Tranche of Incremental Term Loans, provide such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and and/or Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Facility Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to in their own discretion; provided that each Incremental Amendment shall constitute a new Tranche, which Revolving Facility Lender providing an Incremental Revolving Facility Commitment shall be separate and distinct from subject, to the existing Tranches pursuant extent the same would be required for an assignment under Section 9.04, to this Agreement; provided that, with the consent approval of the Administrative Agent Agent, the Issuing Banks and the Swingline Lender (which approvals shall not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto . Such notice shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
set forth (i) the amount of the Incremental Term Loans Loan Commitments and/or Incremental Revolving Facility Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000, or equal to be made pursuant to the remaining Incremental Amount or, in each case, such Incremental Amendment shall have lesser amount approved by the same BorrowerAdministrative Agent), the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new date on which such Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect Loan Commitments and/or Incremental Revolving Facility Commitments are requested to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being addedbecome effective, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the date same terms as the Initial Revolving Loans or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Initial Revolving Loans (“Other Revolving Loans”) and (iv) in the case of the making of such new Incremental Term LoansLoan Commitments, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add whether such Incremental Term Loans Loan Commitments are to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable commitments to make term loans with terms identical to 2021 Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the 2021 Term Loans (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental “Other Term Loans.”). Doc#: US1:15347125v11
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to exceed the Incremental Amount at the time such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender, but no existing Lender will have an obligation to make any Incremental Term Loan Commitments and/or Incremental Revolving Facility on Commitments) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the date case may be, in their own discretion; provided that in the case of Incremental Revolving Commitments either, at the election of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such dateBorrower, (xi) the then-remaining Fixed each Incremental Amount as of the date of incurrence plus (y) Revolving Facility Lender providing Incremental Revolving Facility Commitments shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent (provided that the Administrative Agent shall withhold approval if any of the L/C Issuers object to such Incremental Revolving Facility TestLender) or (ii) the Letter of Credit Commitment may not be allocated under, any Incurrence-Based Incremental Amount that and no Letters of Credit may be incurred thereunder on requested by the Borrower under, such date, Incremental Revolving Facility Commitments. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5.0 million and a new Tranche minimum amount of $20.0 million or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (i.e., not ii) the same as any existing Tranche of Incremental Term Loans, date on which such Incremental Term Loan Commitments or other Term Loansand/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), unless the requirements of Section 2.15(c(iii) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche case of Incremental Term LoansLoan Commitments, whether such Incremental Term Loan Commitments are to be commitments to make term loans with terms identical to any Term Loans shall have then in effect or commitments to make term loans with pricing terms and/or amortization and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from any Term Loans then in effect and (iv) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be commitments to make additional Revolving Facility Loans on the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and or commitments to make revolving loans with pricing terms and/or participation in mandatory prepayments or commitment reductions and/or maturity and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial “Other Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase”), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental 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 and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that
(i) except as to pricing, amortization, final maturity date, participation in voluntary and mandatory prepayments, ranking as to security and covenants and other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such additional Term Facility (which shall not require shall, subject to clause (ii) through (iii) of this proviso, be determined by the consent of any other LenderBorrower and the Incremental Term Lenders in their sole discretion), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which Term Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than, the terms and conditions, taken as a fully executed copy whole, applicable to the Initial Revolving Loans, with such modifications as are customary for term loans (including, without limitation, mandatory prepayments as set forth in Section 2.11 hereof as such mandatory prepayments may be modified by the Borrower and the lenders providing such additional Term Facility (including to establish “step-downs” in the definitions of “Net Proceeds” and “Required Percentage”), “most favored nation” pricing provisions and call protection provisions) (as determined in good faith by the Borrower), (x) then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Incremental Term Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrower) or (z) such Incremental Amendment other terms as shall have been delivered be reasonably satisfactory to the Administrative Agent,
(ii) the Incremental Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Initial Revolving Loans, or be unsecured (provided, that if such Incremental Term Loans rank junior in right of security with the Initial Revolving Loans, such Incremental Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Incremental Term Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(iii) the final maturity date of any Incremental Term Loans shall be no earlier than the Initial Revolving Facility Maturity Date in effect on the date of incurrence of such Incremental Term Loans (provided that this clause (iii) shall not apply to (1) Incremental Term Loans in an aggregate principal amount not in excess of the Inside Maturity Amount available on the date of incurrence of such Incremental Term Loans and (2) bridge facilities allowing extensions on customary terms to a date that is no earlier than the Initial Revolving Facility Maturity Date in effect on the date of incurrence of such Incremental Term Loans),
(iv) solely with respect to Incremental Term Loans with amortization in excess of 5.0% per annum, the Weighted Average Life to Maturity of any such Incremental Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Initial Revolving Facility in effect on the date of incurrence of such Incremental Term Loans (without giving effect to any amortization or prepayments on the Incremental Term Loans) (provided that this clause (iv) shall not apply to (1) Incremental Term Loans in an aggregate principal amount not in excess of the Inside Maturity Amount available on the date of incurrence of such Incremental Term Loans and (2) bridge facilities allowing extensions on customary terms to a date that is no earlier than the Initial Revolving Facility Maturity Date in effect on the date of incurrence),
(v) except as to pricing, final maturity date, participation in voluntary and mandatory prepayments and commitment reductions, ranking as to security and covenants or other provisions applicable only to periods after the latest Revolving Facility Maturity Date existing at the time of incurrence of such Incremental Revolving Facility Commitments (which shall, subject to clause (vi) and (vii) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (w) terms substantially similar to, or not materially less favorable to the Borrower and its Subsidiaries than the terms and conditions, taken as a whole, applicable to the Initial Revolving Loans (as determined in good faith by the Borrower), (x) all fees required then-current market terms (as determined in good faith by the Borrower), (y) in the case of unsecured Other Revolving Loans, terms that are customary for “high yield” securities (as determined in good faith by the Borrower) or (z) such other terms as shall be reasonably satisfactory to be paid in connection therewith the Administrative Agent,
(vi) the Other Revolving Loans shall rank pari passu or, at the time option of the Borrower, junior in right of security with the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, Other Revolving Loans that rank junior in right of security or are unsecured shall be established pursuant to separate facilities from the Initial Revolving Loans),
(vii) (A) the final maturity date of any Other Revolving Loans shall be no earlier than the Initial Revolving Facility Maturity Date and (B) any Other Revolving Loans shall not have any scheduled amortization or mandatory commitment reduction prior to the Initial Revolving Facility Maturity Date,
(viii) [reserved],
(ix) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party;
(x) there shall be no collateral security for any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments other than the Collateral; and
(xi) any Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) with other Term Loans in any mandatory repayments or prepayments or commitment reductions hereunder, and any Incremental Revolving Facility Commitments may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) with other Revolving Facility Commitments in any mandatory commitment reductions hereunder. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall have been paid be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e) (including, without limitation, any agreed upon upfront amendment to Section 2.10(a) as may be necessary to reflect the amortization of any such Incremental Term Loans, including in the case of any Incremental Term Loan that is intended to be “fungible” with any existing series of Term Loans, any customary adjustments necessary to provide for such “fungibility”). Any amendment to this Agreement or arrangement fees owing any other Loan Document that is necessary to effect the provisions of this Section 2.21 and any such collateral and other documentation shall be deemed “Loan Documents” hereunder and 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 extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderparties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless on the date of such effectiveness, as (A) to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (not to be unreasonably withheldB) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, delayed or conditionedno Event of Default under Section 7.01(b), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of(c), and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(ih) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche Borrower) or (i) (with respect to which such new the Borrower) shall have occurred and be continuing or would result therefrom.
(d) 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 (i) all Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new other than Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental having terms different from any Term Loans then in effect), when originally made, are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth included in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of the outstanding applicable Class of Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.11(a) or Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms (“Pro Rata Extension Offers”), the Borrower is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of such Lender’s Loans and/or Commitments of such Class and/or to otherwise modify the terms of such Lender’s Loans and/or Commitments of such Class pursuant to the terms of the relevant Pro Rata Extension Offer (including without limitation increasing or reducing the interest rate or fees payable in respect of such Lender’s Loans and/or Commitments and/or modifying the amortization schedule in respect of such Lender’s Loans). For the avoidance of doubt, the reference to “on the same terms” in the preceding sentence shall mean, in the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, that all of the Revolving Facility Commitments in respect of such Revolving Facility are, in each case, offered to be extended for the same amount of time and that the interest rate changes and fees payable with respect to such extension are the same or are offered the same other modifications, as applicable. Any such extension or other modification (an “Extension”) andagreed to between the Borrower and any such Lender (which may include any existing Lender, but no existing Lender will have an obligation to make any Extension) (an “Extending Lender”) will be established under this Agreement by implementing an Incremental Term Loan for such Lender (if such Lender is extending an existing Term Loan (such extended Term Loan, an “Extended Term Loan”)) or an Incremental Revolving Facility Commitment for such Lender (if such Lender is extending an existing Revolving Facility Commitment (such extended Revolving Facility Commitment, an “Extended Revolving Facility Commitment”)).
(f) The Borrower and each Extending Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Extended Term Loans and/or Extended Revolving Facility Commitments of such Extending Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Extended Term Loans and/or Extended Revolving Facility Commitments; provided that (i) except as to interest rates, fees, any other pricing terms, amortization, final maturity date, participation in prepayments and commitment reductions and covenants and other provisions applicable only to periods after the Initial Revolving Facility Maturity Date existing at the time of incurrence of such Extended Term Loan (which shall, subject to clauses (ii) and (iii) of this proviso, be determined by the amount of any Incremental Borrower and set forth in the Pro Rata Extension Offer), the Extended Term Loans does shall have (w) terms substantially similar to, or not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related materially less favorable to the establishment Borrower and incurrence of such Incremental Term Loans.its Subsidiaries than, the terms and conditions, taken as a
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Amount at the time such Incremental Term Loan Commitments and/or Incremental Revolving Facility on Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the date of the incurrence thereof case may be, in their own discretion. Such notice shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, set forth (xi) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective (the provisions applicable to “Increased Amount Date”), and (iii) (a) in the existing case of Incremental Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Loan Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed whether such Incremental Term Loan Commitments are to be Initial Revolving Term Loan Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Initial Term Loans (including, without limitation“Other Term Loans”) and/or (b) whether such Incremental Revolving Facility Commitments are to be Revolving Facility Commitments or commitments to make revolving loans with pricing and/or amortization and/or maturity and/or other terms different from the Revolving Facility Loans (“Other Revolving Loans”);
(b) The Administrative Agent shall notify the Borrower and each applicable Lender of the Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase, the following: (A) the rate of interest applicable Borrower may also invite additional Eligible Assignees to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the become Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Assumption Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(bc) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that
(i) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (ii), (iii), (vi), (vii) and (ix) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have been delivered (x) substantially similar terms as the Initial Term Loans or (y) such other terms as shall be reasonably satisfactory to the ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
(▇▇) the final maturity date of any Other Term Loans shall be no earlier than the Initial Term Loan Facility Maturity Date,
(iii) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Initial Term Loans,
(iv) except as to pricing, amortization, commitment reduction, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to clause (v), (vi), (viii) and (ix) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) substantially similar terms as the Revolving Facility or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, ,
(xv) all fees required to the final maturity date of any Other Revolving Loans shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfiedno earlier than, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes require no scheduled amortization or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15mandatory commitment reductions prior to, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Revolving Facility Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Initial Revolving Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.;
Appears in 1 contract
Incremental Commitments. (a) Each Incremental Lender hereby agrees, severally and not jointly, to make an Incremental Loan to the Borrower may at any time and from time on the Incremental Commitment Effective Date in Dollars in an aggregate principal amount equal to time request one or more Lenders the amount set forth opposite such Incremental Lender’s name on Schedule I attached hereto (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term LoanCommitment” and, collectively, the “Incremental Term Loans” andCommitments”), collectively with any Revolving Commitment Increase on the terms set forth herein and any Additional/Replacement Revolving Commitmentin the Credit Agreement (as amended hereby), each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable herein. The Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans “Loans” as defined in the Credit Agreement (including, without limitation, as amended hereby) for all purposes of the following: (A) the rate of interest Credit Agreement having terms and provisions identical to those applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (Loans outstanding immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to Effective Date (the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term “Existing Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At The Incremental Loans shall be made as a single borrowing, with an initial Interest Period that commences on the time Incremental Commitment Effective Date and ends on the last day of the provision of Interest Period applicable to the Existing Loans on the Incremental Commitments pursuant to this Section 2.15, BorrowerCommitment Effective Date. During such initial Interest Period, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) London Interbank Offered Rate applicable to the extent such consent, if any, would Incremental Loans shall be required under Section 13.04(b) the same London Interbank Offered Rate applicable for an assignment of the Existing Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness as of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfiedEffective Date. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above herein or in this Section 2.15the Credit Agreement, from and after the Incremental Commitment Effective Date, the Existing Loans and the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment Loans shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding single Borrowing of Term Loans for all purposes under the Credit Agreement.
(c) Unless previously terminated, the Incremental Commitments of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans Lenders pursuant to Section 2.01(b)2(a) on a pro rata basis. To shall terminate upon the extent the provisions making of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoIncremental Commitment Effective Date.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Each Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
Lender (i) confirms that a copy of the Lenders Credit Agreement, together with respect copies of the financial statements referred to the relevant series of Term Loans and/or Commitments being extendedtherein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Joinder and make its Incremental Loan, repriced or refinanced are offered the opportunity have been made available to participate in such transaction on a pro rata basis (and on the same terms) and
Incremental Lender; (ii) agrees that it will, independently and without reliance upon the amount of Administrative Agent, any joint lead arranger or joint bookrunner, or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement, including this Joinder; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) acknowledges and agrees that upon the Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees Commitment Effective Date such Incremental Lender shall be a “Lender” and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancingan “Incremental Lender” under, and (z) fees for all purposes of, the Credit Agreement, and expenses (including any upfront feesshall be subject to and bound by the terms thereof, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting shall perform all the obligations of and similar fees) related to the establishment shall have all rights of a Lender and incurrence of such an Incremental Term LoansLender thereunder.
Appears in 1 contract
Incremental Commitments. (a) So long as no Default or Event of Default then exists or would result therefrom, the Borrower may at any time and from time shall have the right to time request on one or more occasions that one or more Lenders (or and/or one or more other Eligible Transferees who will become LendersAssignees provide (A) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such under a given Tranche of Incremental Term Loans incurred as designated in connection therewith, each, an “the Incremental Term Loan” and, collectively, Commitment Agreement in accordance with the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower provisions of this Agreement and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental AmendmentCommitment Agreement, provide commitments and/or make Loans Incremental Term Loans, pursuant thereto; thereto or (B) one or more increases in the Revolving Loan Commitments (“Increased Revolving Loan Commitments”), it being understood and agreed, however, that that:
(i) no Lender shall be obligated to provide an Incremental Facility Term Loan Commitment or Increased Revolving Loan Commitment as a result of any such request by the Borrower, ;
(ii) any Lender (including any or other Eligible Transferee who will become a Lender) Assignee may so provide an Incremental Facility Term Loan Commitment without the consent of any other Lender; provided, that any Eligible Assignee that (x) is not a Lender, an affiliate of a Lender or an Approved Fund shall be subject to the consent (not to be unreasonably withheld) of the Administrative Agent or (y) is providing an Increased Revolving Loan Commitment shall be subject to the consent (not to be unreasonably withheld) of the Administrative Agent, the Swingline Lender and the Issuing Lenders;
(iii) each provision of Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available Term Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a given particular Incremental Amendment Commitment Agreement shall be in a minimum aggregate amount (for all Lenders which provide such Incremental Facility thereunder (including and other Eligible Transferees Assignees who will become LendersLenders pursuant thereto) of at least $10,000,00025,000,000 and each provision of Increased Revolving Loan Commitments pursuant to this Section 1.11 on a given date pursuant to a particular Incremental Commitment Agreement shall be in a minimum aggregate amount (for all Lenders and other Eligible Assignees who will become Lenders pursuant thereto) of $5,000,000;
(iv) after giving effect to the establishment of such Incremental Term Loan Commitments or Increased Revolving Loan Commitments, the Maximum Consolidated Senior Secured Leverage Condition (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in an amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) shall be satisfied on the date such Incremental Term Loan Commitments or Increased Revolving Loan Commitments are established;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, each Incremental Commitment Agreement pursuant to an which Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower Term Loan Commitments are being provided shall specifically designate, in consultation with designate the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Loans or Incremental Term Loan Commitments or other Term Loans), Commitments) unless the requirements of following Section 2.15(c1.11(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause ;
(vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an (x) Incremental Term Loan Commitment pursuant to an Incremental Amendment Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment Commitment Agreement as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans1.01(c) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, Tranche for all purposes of this Agreement and the other applicable Credit Documents or (y) an Increased Revolving Loan Commitment pursuant to an Incremental Commitment Agreement shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, have a Revolving Loan Commitment from and after the date of the related Incremental Commitment Agreement;
(vii) in no event shall the Maturity Date of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be earlier than the Maturity Date of any other Tranche of Loans (or the Revolving Loan Commitments) outstanding at the time such Incremental Term Loans are incurred;
(viii) in no event shall the Weighted Average Life to Maturity of the Incremental Term Loans to be provided pursuant to any Incremental Commitment Agreement be less than the Weighted Average Life to Maturity of any other Tranche of Term Loans outstanding at the time such Incremental Term Loans are incurred;
(ix) after giving effect to the establishment of such Incremental Term Loan Commitments and Increased Revolving Loan Commitments, the Borrower shall be in compliance with Sections 9.08 and 9.09 (calculated on a Post-Test Period Pro Forma Basis and assuming that all Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments (and any other then existing Incremental Term Loan Commitments) have been incurred and that Revolving Loans have been made pursuant to, and in an amount equal to, the full amount of Increased Revolving Loan Commitments established following the Initial Borrowing Date) at such time;
(x) the Applicable Margin, minimum Eurodollar Rate, if any, and minimum Base Rate, if any, for the Incremental Term Loans shall be determined by the Borrower and the applicable Lenders or Eligible Assignees providing such Incremental Term Loans; provided, however, that (i) the interest rate margins for the Incremental Term Loans shall not be greater than the highest interest rate margins that may, under any circumstances, be payable with respect to the InitialTerm B Loans plus 25 basis points (unless the interest rate margins applicable to the Term Loans are increased to the extent necessary to achieve the foregoing), (ii) solely for purposes of the foregoing clause (i), the interest rate margins applicable to any InitialTerm B Loans or Incremental Term Loans shall be deemed to include all upfront or similar fees or original issue discount (but excluding bona fide arrangement fees) payable by the Borrower generally to the Lenders providing such InitialTerm B Loans or such Incremental Term Loans based on an assumed four-year life to maturity) and (xiviii) all if the lowest permissible Eurodollar Rate is greater than 1.501.00% or the lowest permissible Base Rate is greater than 2.502.00% for such Incremental Commitment Requirements Term Loans, the difference between such “floor” and 1.501.00%, in the case of Eurodollar Loans, or 2.502.00%, in the case of Base Rate Loans, shall be equated to interest rate margin for purposes of clause (i) above;
(xi) except as provided above, the terms and conditions applicable to Incremental Term Loans shall be determined by the Borrower and the Lenders providing such Incremental Term Loans; provided that to the extent such terms are satisfiedmaterially different from those of the InitialTerm B Loans, such terms shall be reasonably satisfactory to the Administrative Agent; and
(xii) the Borrower shall provide the Administrative Agent with notice of each request for Incremental Term Loan Commitments pursuant to this Section 1.11 contemporaneously with the making of each such request.
(b) At the time of the any provision of Incremental Term Loan Commitments of a given Tranche pursuant to this Section 2.151.11, (i) the Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee Assignee which agrees to provide an Incremental Term Loan Commitment (each, each an “Incremental Term Loan Lender”) shall execute (which execution may be in counterparts) and deliver to the Administrative Agent an Incremental Amendment Commitment Agreement (which it being understood that a single Incremental Commitment Agreement shall not require be executed and delivered by all Incremental Term Loan Lenders providing Incremental Term Loan Commitments in response to a particular request for same made by the consent Borrower) substantially in the form of any other LenderExhibit C (appropriately completed and with such modifications as may be reasonably acceptable to the Administrative Agent), with the effectiveness of the Incremental Commitment Term Loan Commitment(s) provided therein to occur on the date on which (w) a fully executed copy of set forth in such Incremental Amendment Commitment Agreement and the payment of any fees required in connection therewith; (ii) VHS Holdco I and its Subsidiaries shall have been delivered (or shall have agreed with the Administrative Agent to deliver within a time period to be agreed after such Incremental Term Loan Commitments are established, such amendments, modifications and/or supplements to the Security Documents (if any) as are necessary or, in the reasonable opinion of the Administrative Agent, desirable to ensure that the additional Obligations to be incurred pursuant to the Incremental Term Loan Commitments are secured by, and entitled to the benefits of, the Security Documents; (iii) the Administrative Agent shall receive an acknowledgment from the Credit Parties that the Incremental Term Loans to be incurred pursuant to such Incremental Term Loan Commitments are entitled to the benefits of the applicable Credit Documents; and (iv) the Borrower shall deliver to the Administrative Agent an opinion or opinions, in form and substance reasonably satisfactory to the Administrative Agent, (x) all fees required from counsel to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing Borrower reasonably satisfactory to the Administrative Agent to (which, unless otherwise requested by the extent it served Administrative Agent, may be the Borrower’s General Counsel) and dated such date, covering such matters as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfiedAdministrative Agent may reasonably request. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental LenderCommitment Agreement.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15above, the Incremental Term Loan Commitments provided by an Incremental Term Loan Lender or Incremental Term Loan Lenders, as the case may be, pursuant to each Incremental Amendment Commitment Agreement shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent which designation may be made in letters (not to be unreasonably withheldi.e., delayed or conditionedA, B, C, etc.), numbers (1, 2, 3, etc.) or a combination thereof (i.e., ▇-▇, ▇-▇, ▇-▇, ▇-▇, etc.), provided that the parties to a given Incremental Amendment Commitment Agreement may specify therein that the respective Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment Commitment Agreement shall have the same Borrower, the same Maturity Date and the same Applicable Margins Weighted Average Life to Maturity as the Tranche of Term Loans to which the new Incremental Term Loans are being added, and shall bear interest at the same rates (i.e., have the same Applicable Margins and other interest rate terms) applicable to such Tranche;
(ii) the new Incremental Term Loans shall have the same Scheduled Term Loan Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Term Loan Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Term Loan Repayment of the respective Tranche proportionately, provided that any Scheduled Term Loan Repayments relating to Incremental Term Loans being added to the Tranche of InitialTerm B Loans shall be determined in accordance with Section 4.02(b)); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.091.02, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable respective Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates will participate proportionately in each then outstanding Borrowing of Term Loans of the respective Tranche, and so that the existing Lenders with respect to such Tranche continue to have the same participation (after giving effect to by amount) in each Borrowing as they had before the incurrence making of such the new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basisof such Tranche. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans the same to the then outstanding Borrowings of LIBO Rate Loans of such TrancheEurodollar Loans, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Eurodollar Loans of such Tranche and which will end on the last day of such Interest Period).
(d) Upon each increase in the Revolving Loan Commitments pursuant to this Section 2.11, each Lender with a Revolving Loan Commitment immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing an Increased Revolving Loan Commitment, and each such Lender with an Increased Revolving Loan Commitment will automatically and without further act be deemed to have assumed, a portion of such existing Lender’s participations hereunder in the Letter of Credit Outstandings and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letter of Credit Outstandings and (ii) participations hereunder in Swingline Loans held by each Lender with a Revolving Loan Commitment will equal the RL Percentage of such additional Lender (after giving effect to such Increased Revolving Loan Commitments) and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Revolving Loan Commitment be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Increased Revolving Loan Commitments), which irregular interest periods prepayment shall be permitted notwithstanding anything accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.08. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretosentence.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at by written notice to the Administrative Agent elect to request (x) prior to the Revolving Commitment Termination Date, an increase to the existing Revolving Commitments (each, an “Incremental Revolving Commitment”, and any time and from time to time request such increase, an “Incremental Revolving Facility”) and/or (y) the establishment of one or more Lenders new term loan commitments (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term LoanCommitment” and, collectively(and together with the Incremental Revolving Commitments, the “Incremental Term Loans” andCommitments”), collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, eachsuch increase, an “Incremental Term Facility” and collectivelyand, together with any Incremental Revolving Facility, the “Incremental Facilities”) ), by an aggregate amount not in excess of the Incremental Available Amount; provided that, with respect to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant Term Commitment the primary purpose of which is to finance a given Permitted Acquisition or similar Investment permitted by this Agreement, whose consummation is not conditioned on the availability of, or on obtaining, financing, the Incremental Amendment shall Ratio Amount may, at the Borrower’s option, be in tested on a minimum aggregate amount for all Lenders which provide pro forma basis giving effect to such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan Permitted Acquisition or Commitmentsimilar Investment, as applicable, pursuant to an Incremental Facility on at the date of time the incurrence thereof shall not exceeddefinitive agreements for such Permitted Acquisition or similar Investment, when taken together with any incurrence of Permitted Pari Passu Notesas applicable, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) are entered into rather than at the then-remaining Fixed Incremental Amount as of the date time of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of (and, in connection with any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization subsequent calculation of such Tranche ratio or any incurrence ratio under Section 7.01(a)(xxiii) prior to the consummation or termination of Incremental Term Loans may differsuch Permitted Acquisition or similar Investment, so long asas applicable, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase ratio shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after a pro forma basis giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments Permitted Acquisition or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranchesimilar Investment, as applicable, for all purposes and other transactions in connection therewith (including any incurrence of this Agreement Indebtedness and the other applicable Credit Documents and use of proceeds thereof)). Each such notice shall specify (xivi) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment date (each, an “Incremental LenderIncrease Effective Date”) on which the Borrower proposes that the Incremental Commitments shall execute and deliver be effective, which shall be a date not less than 10 Business Days after the date on which such notice is delivered to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein or such shorter period as may be agreed to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to by the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (yin its sole discretion) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) the identity of each Lender to whom the extent requested by Borrower proposes any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to portion of such Incremental LenderCommitments be allocated and the amounts of such allocations; provided that any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide such Incremental Commitment. Each Incremental Commitment shall be in conformity with an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the requirements aggregate limit in respect of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new above). The proceeds in connection with any Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan Commitment may be established used by the Borrower and incurred as a means its Subsidiaries for working capital and other general corporate purposes, including the financing of effectively extending Permitted Acquisitions and other Investments and any other use not prohibited by the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term LoansLoan Documents.
Appears in 1 contract
Sources: Credit Agreement (Griffon Corp)
Incremental Commitments. (a) Borrower may at any time After the primary syndication of the Revolving Credit Facility and the Term Facility has been completed, by written notice to the Administrative Agent from time to time time, (i) the German Borrower may request Incremental Term Loan Commitments, Incremental Revolving Facility Commitments and/or Incremental Synthetic L/C Commitments and (ii) the U.S. Borrower may request Incremental Revolving Facility Commitments, in each case an amount not to exceed the Incremental Amount, from one or more Incremental Term Lenders, Incremental Revolving Facility Lenders and/or Incremental Synthetic L/C Lenders (or one or more Eligible Transferees who will become Lenders) each of which may include any existing Lender), as applicable, willing to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Incremental Revolving Commitment Increase and any AdditionalFacility Commitments and/or Incremental Synthetic L/Replacement C Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, Facility Lender shall be subject to the terms approval of the Administrative Agent and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that Issuing Bank (which approval shall not be unreasonably withheld). Such notice shall set forth (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any the Incremental Term Loan Commitments, Incremental Revolving Facility made available pursuant to a given Commitments and/or Incremental Amendment Synthetic L/C Commitments being requested (which shall be in a minimum aggregate amount for all Lenders of $25.0 million or equal to the remaining Incremental Amount), (ii) the date on which provide such Incremental Term Loan Commitments, Incremental Revolving Facility thereunder Commitments and/or Incremental Synthetic L/C Commitments are requested to become effective (including Eligible Transferees who will become Lenders) of at least $10,000,000the “Increased Amount Date”), (viii) in the aggregate principal amount case of any Incremental Term Loan or CommitmentCommitments, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on whether such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such commitments to make Incremental Term Loans shall have in the same form of additional Term B Loans or commitments to make term loans with pricing, maturity and/or amortization terms as each other Tranche of different from the Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term B Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding “Other Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)iv) that may differ from those in the case of other Tranches of Term LoansIncremental Synthetic L/C Commitments, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing whether such Incremental Term Loans than the provisions applicable to the existing Term Loans or as Synthetic L/C Commitments are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of AdditionalSynthetic L/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving C Commitments or as are otherwise reasonably satisfactory commitments to make credit-linked deposits with pricing terms different from the Administrative Agent, Credit-Linked Deposits (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied“Other Credit-Linked Deposits”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The applicable Borrowers and each such applicable Incremental Term Lender, Incremental Synthetic L/C Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Lender. Each Incremental Assumption Agreement in respect of Incremental Term Loan Commitments and/or Incremental Synthetic L/C Commitments shall specify the terms of the applicable Incremental Term Loans and/or Incremental Synthetic Credit-Linked Deposits; provided that (i) the Other Term Loans and/or Other Credit-Linked Deposits shall rank pari passu or junior in right of payment and of security with the Term B Loans and Credit-Linked Deposits and, except as to pricing, amortization and final maturity date, shall have been delivered (x) the same terms as the Term B Loans or Credit-Linked Deposits, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (xii) all fees required to the final maturity date of any Other Term Loans or Other Credit-Linked Deposits shall be paid in connection therewith at no earlier than the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, Term B Facility Maturity Date and (ziii) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as the weighted average life to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments maturity of the affected Lenders Other Term Loans and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving NotesOther Credit-Linked Deposits, as applicable, will shall be issued at Borrower’s expense no shorter than the remaining weighted average life to such maturity of the Other Term Loans or Other Credit-Linked Deposits, as the case may be. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental LenderAssumption Agreement, to this Agreement shall be in conformity with the requirements of Section 2.05 (with appropriate modification) amended to the extent needed (but only to the extent) necessary to reflect the new Incremental Loans existence and terms of the Incremental Commitments made evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by such Incremental Lenderthe Administrative Agent with the Borrowers’ consent (not to be unreasonably withheld) and furnished to the other parties hereto.
(c) Notwithstanding anything to the contrary contained above in foregoing, no Incremental Commitment shall become effective under this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
2.21 unless (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of such effectiveness, the making conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such new date and executed by a Responsible Officer of the Borrowers, (ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may reasonably require to assure that the Incremental Term Loans, and notwithstanding anything Revolving Facility Loans in respect of Incremental Revolving Facility Commitments and/or obligations of the German Borrower in respect of Incremental Synthetic L/C Commitments are secured by the Collateral ratably with (or, to the contrary set forth extent agreed by the applicable Incremental Term Lenders or Incremental Synthetic L/C Lenders in Section 2.09the applicable Incremental Assumption Agreement, junior to) the existing Term B Loans, Revolving Facility Loans and Synthetic L/C Commitments and (iii) the Senior Secured Leverage Ratio shall be, on a Pro Forma Basis after giving effect to such new Incremental Commitments and the Loans and deposits to be made thereunder and the application of the proceeds therefrom as if made and applied on such date, no greater than 3.75 to 1.00.
(d) 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 (i) Incremental Term Loans shall be added to (and other than Other Term Loans) in the form part of) of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans of the applicable Tranche on a pro rata basis and (based on the relative sizes ii) Revolving Facility Loans in respect of the various outstanding Borrowings)Incremental Revolving Facility Commitments, so that each Lender holding Term Loans under the respective Tranche of Term Loans participates when originally made, are included in each outstanding Borrowing of Term outstanding Revolving Facility Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) applicable Borrower on a pro rata basis. To the extent the provisions of the preceding clause (iii) require Each Borrower agrees that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans Section 2.16 shall apply to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations any costs incurred by any Lender to effect the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) After the Closing Date has occurred, any Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (and/or Incremental Revolving Facility Commitments, as applicable, in an amount not to exceed the Incremental Amount available at the time such Incremental Term Loans incurred are funded or Incremental Revolving Facility Commitments are established (except as set forth in connection therewith, each, an “clause (C) of the third paragraph under Section 6.01) from one or more Incremental Term Loan” andLenders and/or Incremental Revolving Facility Lenders (which, collectivelyin each case, the “Incremental Term Loans” and, collectively with may include any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; existing Lender (it being understood and agreed, however, that (i) no Lender shall be obligated to provide an any Incremental Term Loans or Incremental Revolving Facility Commitments unless it shall have consented thereto), but shall be required to be persons which would qualify as assignees of a result of any Lender in accordance with Section 9.04) willing to provide such request by BorrowerIncremental Term Loans and/or Incremental Revolving Facility Commitments, (ii) any Lender (including any Eligible Transferee who will become a Lender) as the case may so provide an Incremental Facility without the consent of any other Lenderbe, (iii) in their sole discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be denominated in Dollars subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04, the Issuing Bank (which approvals shall not be unreasonably withheld, conditioned or an Alternative Currency, delayed). Such notice shall set forth (ivi) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of the Dollar Equivalent of $5,000,000 and a new Tranche minimum amount of the Dollar Equivalent of $10,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (i.e., not ii) the same as any existing Tranche of Incremental Term Loans, date on which such Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments are requested to become effective, (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be (x) commitments to make term loans with terms identical to (and which shall together with any then outstanding Initial Euro Term Loans or other Tranche B-12 Dollar Term Loans, as applicable, form a single Class of) Initial Euro Term Loans or Tranche B-12 Dollar Term Loans, as applicable, or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (“Other Incremental Term Loans”), unless .
(b) The applicable Borrower and each Incremental Term Lender and/or Incremental Revolving Facility Lender shall execute and deliver to the requirements Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of Section 2.15(c) are satisfied), which designation such Incremental Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall be set forth in specify the terms of the applicable Incremental Amendment, Term Loans and/or Incremental Revolving Facility Commitments; provided that:
(viiii) if any (x) commitments to be incurred as a new Tranche of Incremental make additional Term Loans, such Incremental Term B Loans shall have the same terms as each other Tranche of the applicable Term Loans as in effect immediately prior to the effectiveness B Loans, and shall form part of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements same Class of the preceding clause applicable Term B Loans and (vi)y) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans Revolving Facility Commitments shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date same terms as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans Class of Revolving Facility Commitments (or, if more than one Class of Revolving Facility Commitments is then outstanding, the Revolving Facility Commitments with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest latest Revolving Facility Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (IDate) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments Facility Commitments,
(ii) the Other Incremental Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank equally and ratably in right of security with the Term B Loans or, at the option of the applicable Borrower, shall rank junior in right of security with the Term B Loans (provided that, if such Other Incremental Term Loans rank junior in right of security with the Term B Loans, such Other Incremental Term Loans shall be subject to the Collateral Trust Agreement or any other Intercreditor Agreements, if any, as are reasonably necessary or advisable (and reasonably acceptable to the Administrative Agent) to give effect to such security interest and, for the avoidance of doubt, shall not be subject to clause (v) below),
(iii) (x) the final maturity date of any such Other Incremental Term Loans shall be no earlier than the Latest Maturity Date applicable to Term Loans in effect at the date of incurrence of such Other Incremental Term Loans (other than with respect to (I) any Other Incremental Term Loans with amortization in excess of 1% and less than or equal to 10% per year that is marketed principally to regulated commercial banks (as determined by the Parent), (II) Other Incremental Term Loans in effect an amount not to exceed 50% of Adjusted Consolidated EBITDA for the most recently ended Test Period for which financial statements of Parent have been delivered (or were required to be delivered) under Section 5.04, and (III) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (iii))), (y) no Incremental Facility shall mature on the effective date of the Revolving Commitment Increase (immediately or prior to the establishment latest Revolving Facility Maturity Date and (z) except as to pricing, fees, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the applicable Borrower and the Incremental Term Lenders in their sole discretion), such Revolving Commitment IncreaseOther Incremental Term Loans shall have (1) the same terms as the Term B Loans or (2) such other terms as shall be reasonably satisfactory to the Administrative Agent (it being understood that, to the extent that any term is added for the benefit of any Other Incremental Term Loans, no consent shall be required from Term Lenders to the extent that such term is (a) also added for the benefit of the Term Loans or (b) is only applicable after the maturity of the Term Facility),
(iv) the Weighted Average Life to Maturity of any such Other Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans with the longest remaining Weighted Average Life to Maturity (other than with respect to (I) any Other Incremental Term Loans with amortization in excess of 1% and less than or equal to 10% per year that is marketed principally to regulated commercial banks (as determined by the Parent), (EII) Other Incremental Term Loans in an amount not to exceed 50% of Adjusted Consolidated EBITDA for the most recently ended Test Period for which financial statements of Parent have been delivered (or were required to be delivered) under Section 5.04, and (III) customary “bridge loan” facilities with a tenor of no longer than one year (provided that such facilities automatically convert or exchange into long-term debt otherwise meeting the requirements of this clause (iv))),
(v) with respect to any Other Incremental Term Loan, the All-in Yield shall be as agreed by the respective Incremental Term Lenders and the applicable Borrower, except that the All-in Yield in respect of any such Other Incremental Term Loan that is Other First Lien Debt and incurred prior to the date that is eighteen months after the Closing Date may exceed the All-in Yield in respect of the Initial Term Loans by no more than 0.50%, or if it does so exceed such All-in Yield (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “floor” as provided in the following proviso) applicable to such Initial Term Loans shall be increased such that after giving effect to such Revolving Commitment Increasesincrease, the Pro Rata Percentage Term Yield Differential shall not exceed 0.50%; provided that, to the extent any portion of the Revolving Commitments Term Yield Differential is attributable to a higher “floor” being applicable to such Other Incremental Term Loans, such floor shall only be included in the calculation of each Lender may be adjusted to give effect the Term Yield Differential to the total Revolving Commitment as increased by extent such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier floor is greater than the then latest maturing Tranche Eurocurrency Rate in effect for an Interest Period of outstanding Revolving Loansthree months’ duration at such time, (xi) any Tranche of and, with respect to such excess, the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions “floor” applicable to the existing Revolving outstanding Initial Term Loans shall be increased to an amount not to exceed the “floor” applicable to such Other Incremental Term Loans prior to any increase in the Applicable Margin applicable to such Initial Term Loans then outstanding,
(vi) such Other Incremental Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term B Loans in any mandatory prepayment hereunder,
(vii) there shall be no borrower (other than a Borrower) or guarantor (other than the Guarantors) in respect of any Incremental Term Loan Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, Incremental Revolving Facility Commitments,
(xiiviii) all Other Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and Facility Commitments shall not be secured by any assets that do not constitute Collateral for asset of Parent or its Subsidiaries other than the outstanding Loans or Collateral; and
(ix) the Parent shall be guaranteed by in Pro Forma Compliance with the Financial Covenants (if then applicable). Each party hereto hereby agrees that, upon the effectiveness of any guarantors that are not Credit PartiesIncremental Assumption Agreement, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject this Agreement shall be amended to the satisfaction extent (but only to the extent) necessary to reflect the existence and terms of the relevant conditions set forth in this Agreement, make Incremental Term Loan Commitments and/or Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment Facility Commitments evidenced thereby as provided for in Section 2.01(c) (with respect 9.08(e). Any amendment to Incremental Term Loans) this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and applicable Incremental Amendment (with respect to Incremental Revolving Loans) any such collateral and such Loans other documentation shall thereafter be deemed to “Loan Documents” hereunder and may be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, memorialized in writing by the Administrative Agent and each such Lender (with the Parent’s consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld withheld) and furnished to the other parties hereto.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or delayedIncremental Revolving Facility Commitment shall become effective under this Section 2.21 unless (i) no Default or Event of Default shall exist; provided, that in the event that any tranche of Incremental Term Loans is used to finance a Limited Condition Acquisition, to the extent the Incremental Term Lenders participating in such consenttranche of Incremental Term Loans agree, if any, would be required under Section 13.04(bthe foregoing clause (i) for an assignment and clause (ix) of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment the preceding clause (each, an “Incremental Lender”b) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith tested at the time of the execution of the acquisition agreement related to such effectiveness Limited Condition Acquisition (provided, that such Incremental Term Lenders shall have been paid not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term Loans); (including, without limitation, any agreed upon upfront or arrangement fees owing to ii) the Administrative Agent to representations and warranties of the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions Borrowers set forth in this Section 2.15 Agreement shall be true and correct in all material respects (other than to the extent qualified by materiality or “Material Adverse Effect”, in which case, such representations and warranties shall be true and correct); provided that, in the event that the tranche of Incremental Term Loans is used to finance a Limited Condition Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (ii) shall be limited to the Specified Representations and those representations of the seller or the target company (as applicable) included in the acquisition agreement related to such Limited Condition Acquisition that are material to the interests of the Lenders and only to the extent that the Parent or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a result of a failure of such representations to be accurate; and (iii) the Administrative Agent shall have been satisfiedreceived documents and legal opinions consistent with those delivered on the Closing Date as to such matters as are reasonably requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, Assumption Agreement.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and at such time, all action as may be reasonably necessary to ensure that (i) Schedule 2.01 shall be deemed modified to reflect the revised all Incremental Commitments Term Loans (other than Other Incremental Term Loans), when originally made, are included in each Borrowing of the affected Lenders outstanding applicable Class of Term Loans on a pro rata basis, and (ii) to the extent requested by any all Revolving Facility Loans in respect of Incremental LenderRevolving Facility Commitments, Term Notes or Revolving Noteswhen originally made, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be are included in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes Class of the various outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Parent agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term SOFR Loans add such Incremental Term or Eurocurrency Rate Loans to the then outstanding Borrowings of LIBO Rate ABR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations reasonably required by any the Administrative Agent of to effect the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
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Incremental Commitments. (a) The Borrower may at and any time and from time to time request one or more Lenders (including New Lenders (as defined below)) may from time to time agree that such Lenders shall make, obtain or one or more Eligible Transferees who will become Lenders) to provide an increase in the amount of their Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase by executing and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject delivering to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that Administrative Agent an Increased Facility Activation Notice specifying (i) no Lender shall be obligated to provide an Incremental Facility as a result the amount of any such request by Borrower, increase and (ii) any Lender the applicable Increased Facility Closing Date. Notwithstanding the foregoing, (including any Eligible Transferee who will become a Lenderi) may so provide an Incremental Facility without the consent of any other Lenderthe Required Lenders, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the aggregate amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the incremental Revolving Commitments that is in effect on obtained after the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental ClosingThird Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments Effective Date pursuant to this Section 2.15, Borrower, the Administrative Agent paragraph shall not exceed $35,000,00050,000,000 and each such Lender (with ii) without the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required each increase effected pursuant to this paragraph shall be paid in connection therewith a minimum amount of at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), least $5,000,000 and (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth no more than three Increased Facility Closing Dates may be selected by the Borrower after the ClosingThird Amendment Effective Date. No Lender shall have any obligation to participate in any increase described in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as paragraph unless it agrees to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be do so in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderits sole discretion.
(cb) Notwithstanding anything to the contrary contained above in this Section 2.15Any additional bank, the Incremental Term Loan Commitments provided by an Incremental Lender financial institution or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided thatother entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not to be unreasonably withheld, delayed or conditioned), elects to become a “Lender” under this Agreement in connection with any transaction described in Section 2.18(a) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the parties form of Exhibit G, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a given Incremental Amendment may specify therein that party hereto and shall be bound by and entitled to the Incremental Term benefits of this Agreement.
(c) Unless otherwise agreed by the Administrative Agent, on each Increased Facility Closing Date, the Borrower shall borrow Revolving Loans made pursuant thereto shall constitute part ofunder the relevant increased Revolving Commitments from each Lender participating in the relevant increase in an amount determined by reference to the amount of each Type of Loan (and, and be added to, an existing Tranche in the case of Term Eurodollar Loans, in any case so long as the following requirements are satisfied:
of each Eurodollar Tranche) which would then have been outstanding from such Lender if (i) the Incremental Term Loans to be made pursuant to each such Incremental Amendment shall have the same Borrower, the same Maturity Type or Eurodollar Tranche had been borrowed or effected on such Increased Facility Closing Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the aggregate amount of each Scheduled Repayment such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to such new Incremental Term Loans any Eurodollar Loan borrowed pursuant to be the same (on a proportionate basis) as is theretofore preceding sentence shall equal the Eurodollar Base Rate then applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Eurodollar Loans of the applicable other Lenders in the same Eurodollar Tranche on a pro rata basis (based on or, until the relative sizes expiration of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such then-current Interest Period), which irregular interest periods such other rate as shall be permitted notwithstanding agreed upon between the Borrower and the relevant Lender.
(d) Notwithstanding anything to the contrary in this Agreement, each of the parties hereto hereby agrees that, on each Increased Facility Activation Date, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence of the increased Revolving Commitments evidenced thereby. All determinations Any such deemed amendment may be effected in writing by any the Administrative Agent of with the LIBO Rate, in such circumstances pursuant Borrower’s consent (not to be unreasonably withheld) and furnished to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all other parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Revolving Credit Agreement (Southern Star Central Corp)
Incremental Commitments. (a) Borrower may at any time and from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide Each Incremental Lender that is an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, Increasing Lender hereby agrees that (i) no Lender shall its Revolver Commitment will be obligated to provide an increased by the amount of its Incremental Facility Commitment set forth on Annex B attached hereto effective as a result of any such request by Borrowerthe Amendment Effective Date (as defined below), (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving increase, its total Revolver Commitment Increases, will be the Pro Rata Percentage amount of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increaseits “Total Revolver Commitment” set forth on Annex B attached hereto, and (Eiii) the Revolving Commitment Increase it shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made continue to be a Lender under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Amended Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At Each Incremental Lender that is an Additional Lender hereby agrees (i) to become a Lender under the time Amended Credit Agreement effective as of the provision Amendment Effective Date with a Revolver Commitment equal to its Incremental Commitment set forth on Annex B attached hereto and (ii) that it shall be a party in all respects to, and bound as a Lender in all respects by, the Amended Credit Agreement and the other Loan Documents.
(c) On the Amendment Effective Date, (i) each of the existing Lenders shall assign to each of the Incremental Lenders, and each of the Incremental Lenders shall purchase from each of the existing Lenders, at the principal amount thereof, such interests in the outstanding Revolving Loans and participations in Letters of Credit outstanding on such date that will result in, after giving effect to all such assignments and purchases, such Revolving Loans and participations in Letters of Credit being held by existing Lenders and Incremental Lenders ratably in accordance with their Pro Rata Share after giving effect to the addition of such Incremental Commitments pursuant to this Section 2.15the Revolver Commitments, Borrower(ii) each Incremental Commitment shall be deemed, the Administrative Agent for all purposes, a Revolver Commitment and each such 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 Lender shall become a Lender with respect to its Revolver Commitment and all matters relating thereto.
(d) Each Incremental Lender (with the consent i) confirms that it has received a copy of the Administrative Agent, each Issuing Bank Amended Credit Agreement and the Swingline other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment, (ii) agrees that it will, independently and without reliance upon Agent or any other Lender or agent thereunder and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Amended Credit Agreement, (not iii) appoints and authorizes Agent to take such action as agent on its behalf and to exercise such powers under the Amended Credit Agreement and the other Loan Documents as are delegated to Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Amended Credit Agreement are required to be unreasonably withheld or delayedperformed by it as a Lender, (v) confirms that it is an Eligible Transferee, and (vi) to the extent it is an Additional Lender, (A) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender and (B) certifies that it has delivered to the Par Borrower the forms prescribed by the Internal Revenue Service of the United States certifying as to its status for purposes of determining exemption from United States withholding taxes with respect to all payments to be made to it under the Amended Credit Agreement or such consentother documents as are necessary to indicate that all such payments are subject to such rates at a rate reduced by an applicable tax treaty.
(e) Each Lender party hereto (including, if anyfor the avoidance of doubt, would each undersigned Lender that is not an Incremental Lender) hereby agrees that the Borrower shall not be required to make any Funding Losses payments to such Lender which may otherwise be required under Section 13.04(b2.12(b)(ii) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein Credit Agreement solely resulting from the increase in the Revolver Commitments effected pursuant to occur on the date on which (w) a fully executed copy this Amendment; provided, that each Lender’s waiver of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions Funding Losses payments set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment1.1(e) is a limited, one-time waiver, and at such timenothing contained herein shall obligate Agent or any Lender to grant any additional or future waiver with respect to, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments or in connection with, any provision of the affected Lenders and (ii) to the extent requested by Amended Credit Agreement or any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother Loan Document.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Par Pacific Holdings, Inc.)
Incremental Commitments. (a) Prior to the Commitment Termination Date, Borrower may at any time and from time may, by written notice to time the Facility Agent, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving to the existing Commitments (a any such increase, any “Revolving Commitment IncreaseIncremental Commitment”), one or more additional Tranches of Revolving Commitments .
(an “Additional/Replacement Revolving Commitment”b) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject No increase to the terms existing Commitments shall occur, and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to Person may provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken without the prior written consent of the Facility Agent and each Lender, which consent shall be in the sole discretion of the Facility Agent and the Lenders (each approved Person, if any, an “Incremental Lender”).
(c) No Lender or any other Person shall have any obligation to provide any or all of the Incremental Commitments until such time such Person becomes an Incremental Lender, and any Lender may elect or decline, in its sole discretion, to provide an Incremental Commitment.
(d) Each Incremental Commitment shall become effective as a wholeof the date agreed to among Borrower, that are not materially more favorable to the lenders providing Facility Agent and the applicable Incremental Lenders (the “Incremental Increase Date”), so long as (i) no Event of Default shall exist on such Incremental Term Loans than the provisions applicable to the existing Term Loans Increase Date before or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and Incremental Commitments; (Eii) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Incremental Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loansbe effected pursuant to one or more joinder agreements, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably in form and substance satisfactory to the Administrative AgentFacility Agent and the Lenders, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower each of which shall be Obligations of Borrower under this Agreement and recorded in the other applicable Credit Documents Register and shall be secured subject to the requirements set forth in Section 2.11(c); and (iii) Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis Facility Agent in connection with all other Loans secured by the Security Agreement and guaranteed under any such Guaranty Agreement and shall not be secured by transaction.
(e) On any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shallIncrease Date, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) foregoing terms and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such timeconditions, (i) Schedule 2.01 each Lender having an existing Commitment shall assign to each of the Incremental Lenders having a Commitment, and each such Incremental Lender shall purchase from each such Lender, at the principal amount thereof (together with accrued interest), such interests in the Advances outstanding on the Incremental Increase Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Advances will be held by such Lenders having existing Commitments and Incremental Lenders ratably in accordance with their Commitments after giving effect to the addition of such Incremental Commitments to the Commitments; (ii) each Incremental Commitment shall be deemed modified to reflect the revised for all purposes a Commitment and each Advance made thereunder (an “Incremental Commitments of the affected Lenders Advance”) shall be deemed, for all purposes, an Advance and (iiiii) each Incremental Lender shall become a Lender with respect to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans Commitment and Incremental Commitments made by such Incremental Lenderall matters relating thereto.
(cf) Notwithstanding anything to The Facility Agent shall notify the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may bepromptly upon determination of any Incremental Increase Date, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date Commitments and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
Lenders, and (ii) in the new Incremental Term Loans shall have case of each notice to any Lender having Exposure, the same Scheduled Repayment Dates as then remain with respect respective interests in such Lender’s Advances, in each case subject to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); andassignments contemplated by this Section 2.14.
(iiig) on the date of the making of such new Incremental Term Loans, The terms and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans Advances shall be identical to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoAdvances.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)
Incremental Commitments. (a) The Borrower may shall have the right to request at any time and from time to time request that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees who and which will become Lenders, subject to the terms set forth in Section 2.21) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that that:
(i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the Borrower, ;
(ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, ;
(iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, U.S. Dollars;
(iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, 25,000,000;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu NotesLoans, Permitted Pari Passu Loans Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(110.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, ;
(vi) the proceeds of all Incremental Facilities incurred by the Borrower may be used for any purpose not prohibited under this Agreement, ;
(vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ;
(viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; providedMaturity (in each case of the foregoing clauses (a) and (b), howeverexcluding for this purpose (x) interim loan financings that provide for automatic rollover, that Extendable Bridge Loans may have a maturity date earlier than subject to customary conditions, to Indebtedness otherwise meeting the Latest requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loansincurrence), (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such all then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% ” (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative AgentAgent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Initial Term Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans);
(ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (Loans, including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Applicable Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate Rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Revolving Commitments shall be reduced based on each Lender’s Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment IncreasePercentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, ;
(x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, ;
(xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are shall not materially more favorable require any scheduled amortization or mandatory commitment reduction prior to the Lenders providing such Latest Maturity Date of the Initial Revolving Loans and Closing Date Revolving Commitments than and shall be on substantially the provisions same terms as those applicable to the existing Initial Revolving Loans and Closing Date Revolving Commitments (other than as set forth herein or as are otherwise reasonably satisfactory acceptable to the Administrative Agent, );
(xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall shall, to the extent secured, be secured by the Security AgreementAgreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty Agreement and shall not be secured by any assets that do not constitute only the Collateral for securing the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, Obligations hereunder;
(xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans Commitment Increases, Additional/Replacement Revolving Commitments and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and Documents; and
(xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), that the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date maturity date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b2.01(c)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, Rate in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) Any Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request Incremental Term Commitments and/or Incremental Revolving Commitments in an amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which may include any existing Lender or one or more Eligible Transferees who will become Lendersany Person not theretofore a Lender) willing to provide an increase such Incremental Term Loans and/or Incremental Revolving Loans, as the case may be, in their own discretion, provided that each Incremental Term Lender and/or Incremental Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches Lender shall be subject to the approval of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) the US Borrower and the Administrative Agent to the extent that such approval would be required under Section 9.04 if the applicable Incremental Term Lender or Incremental Revolving Lender were the proposed assignee of a Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement or Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that respectively (which approvals shall not be unreasonably withheld). Such notice shall set forth (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any the Incremental Facility made available pursuant to a given Term Commitments and/or Incremental Amendment Revolving Commitments being requested (which shall be in minimum increments of US$25,000,000 and a minimum aggregate amount for all Lenders which provide such of US$25,000,000 or equal to the remaining Incremental Facility thereunder Amount) and (including Eligible Transferees who will become Lenders) of at least $10,000,000, (vii) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility date on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior Commitments and/or Incremental Revolving Commitments are requested to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% become effective (the “MFN Pricing TestIncreased Amount Date”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent Each Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender and the security and Guarantees therefor (the “Incremental Documents”). Each Incremental Assumption Agreement shall specify the terms of the Incremental Term Loans and/or Incremental Revolving Loans to be made thereunder, provided that (i) the Incremental Term Loans and Incremental Revolving Loans shall rank pari passu or junior in right of payment and of security with the Term Loans, and Revolving Loans and (except as to pricing and amortization) shall have the same terms as the Term Loans or Revolving Loans, as applicable, (ii) the maturity date of any Incremental Term Loans or Incremental Revolving Loans shall be no earlier than the date that is six months after the Term Maturity Date, (iii) the weighted average life to maturity of any Incremental Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term Loans as of the date of the applicable Incremental Assumption Agreement and (iv) no interest rate margin (which shall not require the consent be deemed to include all upfront or similar fees or original issue discounts payable to all Incremental Term Lenders providing such Incremental Term Loans) in respect of any other LenderIncremental Term Loan may exceed any Applicable Rate applicable to the Term Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discounts payable to all Term Lenders providing Term Loans) by more than 0.25% (it being understood that any such increase may take the form of original issue discount, with original issue discount being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy without increasing such Applicable Rate so that no interest rate margin in respect of such Incremental Amendment Term Loans (which shall have been delivered be deemed to include all upfront or similar fees or original issue discount payable to all Incremental Term Lenders providing such Incremental Term Loans), is more than 0.25% higher than any Applicable Rate applicable to the Administrative AgentTerm Loans (which shall, (x) for such purposes only, be deemed to include all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement similar fees owing or original issue discount payable to all Term Lenders providing the Administrative Agent to the extent it served as the arranger for the Incremental CommitmentsTerm Loans), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, and at such timeupon the effectiveness of any Incremental Assumption Agreement, (i) Schedule 2.01 this Agreement shall be deemed modified amended to the extent (but only to the extent) necessary to reflect the revised Incremental Commitments existence and terms of the affected Lenders Incremental Term Commitments and/or Incremental Revolving Commitments evidenced thereby as provided for in Section 9.04(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in foregoing, no Incremental Term Commitment or Incremental Revolving Commitment shall become effective under this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
2.21 unless (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of such effectiveness, the making of such new Incremental Term Loans, and notwithstanding anything to the contrary conditions set forth in paragraphs (a) and (b) of Section 2.094.02 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer, (ii) the Administrative Agent shall have received the applicable Incremental Documents and all legal opinions and other documents related thereto and (iii) immediately before and after giving pro forma effect to such new Incremental Term Commitment and/or Incremental Revolving Commitments and the Loans to be made thereunder and the application of the proceeds therefrom, no Default shall have occurred and be continuing (including any Default under Section 6.13, 6.14, 6.15 or 6.16).
(d) 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 shall be added to (and form part of) and/or Incremental Revolving Loans, when originally made, are included in each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term or Revolving Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To , and the extent the provisions Borrowers agree that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to the then outstanding Borrowings of LIBO ABR Loans or Canadian Base Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations reasonably required by any the Administrative Agent of to effect the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Sources: Credit Agreement (CCE Spinco, Inc.)
Incremental Commitments. (a) The Borrower may at any time and from time to time by written notice to the Administrative Agent elect to request one or more Lenders incremental revolving credit commitments (or one or more Eligible Transferees who will become Lendersthe “Incremental Revolving Credit Commitments”) to provide an for the purpose of increasing the aggregate Revolving Credit Commitments; provided that (1) the aggregate amount of all Incremental Revolving Credit Commitments shall not (as of any date of incurrence thereof) exceed $100,000,000 and (2) the aggregate amount of each increase in the Revolving Credit Commitments pursuant to this section shall not be less than $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each such notice shall specify the date (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental FacilitiesIncreased Amount Date”) to on which the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant proposes that any Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender Revolving Credit Commitments shall be obligated to provide an Incremental Facility as a result of any such request by Borrowereffective, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility which shall be denominated in Dollars or an Alternative Currency, a date not less than ten (iv10) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on Business Days after the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant on which such notice is delivered to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent. The Borrower may invite any Lender, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans Affiliate of any Tranche agree to take a lesser share of Lender and/or any such prepayments)); providedApproved Fund, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of and/or any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Revolving Credit Commitment (ixany such Person, a “New Lender”). Any Person offered or approached to provide all or a portion of any Incremental Revolving Credit Commitments may elect or decline, in its sole discretion, to provide an Incremental Revolving Credit Commitment. Any Incremental Revolving Credit Commitment shall become effective as of the related Increased Amount Date; provided that:
(A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Revolving Credit Commitments and (2) the making of any Loans or the issuance of any Letters of Credit pursuant thereto;
(B) all Revolving Credit Loans made, and all reimbursement obligations in respect of Letters of Credit issued, pursuant to any Incremental Revolving Credit Commitments shall constitute Obligations of the Borrower, shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis and shall otherwise be subject to the same terms and provisions conditions as other Revolving Credit Loans and Letters of Credit, respectively;
(C) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the New Lenders providing Incremental Revolving Credit Commitments) agree to make all payments and adjustments necessary to effect such reallocation, and the Borrower shall pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment);
(D) any New Lender with an Incremental Revolving Credit Commitment shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility, and any Extensions of Credit made in connection with each Incremental Revolving Credit Commitment shall receive proceeds of prepayments on the same basis as the other Extensions of Credit made hereunder;
(E) Incremental Revolving Credit Commitments shall be effected pursuant to one or more joinder agreements (each a “Joinder Agreement”) executed and delivered by the Borrower, the Administrative Agent and the applicable New Lenders (which Joinder Agreement(s) shall be in form and substance reasonably satisfactory to the parties thereto and may, without the consent of any Revolving Commitment Increase shall be identical other Lenders, effect such amendments to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit DocumentsLoan Documents as may be necessary or appropriate, all Revolving Loans made under in the Revolving Commitment Increase shall be deemed opinion of the Administrative Agent, to be Initial Revolving Loans effect the provisions of this Section 5.14);
(including, without limitation, the following: (AF) the rate of interest applicable to Administrative Agent and the Revolving Commitment Increase Lenders shall be have received from the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments Borrower a certificate of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization chief financial officer or mandatory commitment reduction prior to the Latest Maturity Date treasurer of the Revolving Commitments that is Borrower demonstrating, in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, form and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise substance reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by that the Borrower shall be Obligations of Borrower under this Agreement and is in compliance with the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions financial covenants set forth in this AgreementArticle X (based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), make as applicable) both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Revolving Credit Commitment and (y) the making of any Revolving Credit Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) pursuant thereto (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to any Incremental Revolving Loans) and such Loans shall thereafter be Credit Commitment being deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.fully funded); and
(bG) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not Borrower shall deliver or cause to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) delivered any customary legal opinions or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid documents (including, without limitation, any agreed upon upfront a resolution duly adopted by the board of directors (or arrangement fees owing equivalent governing body) of each Credit Party authorizing the borrowing of Revolving Credit Loans and the request of Letters of Credit pursuant to Incremental Revolving Credit Commitments) reasonably requested by the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), in connection with any such transaction.
(yb) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 New Lenders shall be deemed modified to reflect the revised Incremental Commitments included in any determination of the affected Required Lenders and (ii) to the extent requested by New Lenders will not constitute a separate voting class or separate tranche of Loans for any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderpurposes under this Agreement.
(c) Notwithstanding anything On any Increased Amount Date on which any Incremental Revolving Credit Commitment becomes effective, subject to the contrary contained above in this Section 2.15foregoing terms and conditions, the Incremental Term Loan Commitments provided by each New Lender with an Incremental Revolving Credit Commitment shall become a Revolving Credit Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, hereunder with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant respect to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoRevolving Credit Commitment.
(d) Subject The parties acknowledge and agree that the $50,000,000 of incremental Revolving Credit Commitments made available to compliance with the other applicable requirements set forth in Borrower pursuant to the Second Amendment constitutes a utilization of the incremental availability contemplated by this Section 2.155.14 such that, any new after giving effect to that utilization, the aggregate amount of Incremental Term Loan Revolving Credit Commitments remaining which may be established and incurred as a means of effectively extending sought or obtained pursuant to this Section 5.14 after the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:Second Amendment Effective Date is $50,000,000.
(ie) The parties acknowledge and agree that the Lenders with respect $50,000,000 of Incremental Revolving Credit Commitments made available to the relevant series Borrower pursuant to the Third Amendment constitutes a utilization of Term Loans and/or Commitments being extendedthe incremental availability contemplated by this Section 5.14 such that, repriced or refinanced are offered after giving effect to that utilization, the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the aggregate amount of any Incremental Term Loans does not exceed Revolving Credit Commitments remaining which may be sought or obtained pursuant to this Section 5.14 after the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term LoansThird Amendment Effective Date is $0.
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Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an Incremental Facility on exceed the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as of the date of incurrence plus (y) case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and the Issuing Bank (which approval shall not be unreasonably withheld) unless such Incremental Facility TestRevolving Lender is a Lender, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, an Affiliate of a Lender or an Approved Fund. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $5.0 million and a new Tranche minimum amount of $25.0 million or equal to the remaining Incremental Amount), (i.e., not ii) the same as any existing Tranche of Incremental Term Loans, date on which such Incremental Term Loan Commitments or other Term Loansand/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), unless (iii) in the requirements case of Section 2.15(c) Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are satisfiedto be Revolving Loan Commitments or commitments to make revolving loans with pricing and/or amortization terms different from the Revolving Loans (“Other Revolving Loans”), which designation shall be set forth and (iv) in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche case of Incremental Term LoansLoan Commitments, whether such Incremental Term Loans shall have Loan Commitments are to be Term Loan Commitments or commitments to make term loans with pricing and/or amortization terms different from the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term B Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding “Other Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) the Other Term Loans shall rank pari passu or junior in right of payment and of security with the Term B Loans and, except as to pricing, amortization and final maturity date, shall have been delivered (x) the same terms as the Term Loans, as applicable, or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the Term B Facility Maturity Date, (iii) the weighted average life to maturity of any Other Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term B Loans, (iv) the Other Revolving Loans shall rank pari passu or junior in right of payment and of security with the Revolving Loans and except as to pricing, amortization and final maturity date, shall have (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served same terms as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving NotesFacility Loans, as applicable, will or (y) such other terms as shall be issued reasonably satisfactory to the Administrative Agent, (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date, and (vi) the Borrower shall have no senior unsecured bridge term loans or senior subordinated bridge terms loans outstanding at Borrower’s expense to the time such Incremental Lender, to be Other Term Loans or Other Revolving Loans are incurred unless such bridge loans are repaid in conformity full with the requirements proceeds of Section 2.05 (with appropriate modification) the Other Term Loans or Other Revolving Loans. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent needed (but only to the extent) necessary to reflect the new existence and terms of the Incremental Loans Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and Incremental Commitments made by such Incremental Lenderfurnished to the other parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (not ii) the Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation as required by the relevant Incremental Assumption Agreement and, to be unreasonably withheldthe extent required by the Administrative Agent, delayed or conditioned), consistent with those delivered on the parties Closing Date under Section 4.02 and such additional customary documents and filings (including amendments to a given Incremental Amendment the Mortgages and other Security Documents and title endorsement bringdowns) as the Administrative Agent may specify therein reasonably require to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by the Collateral ratably with (or, and be added to the extent agreed by the applicable Incremental Term Lenders or Incremental Revolving Facility Lenders in the applicable Incremental Assumption Agreement, junior to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the existing Term B Loans and Revolving Facility Loans and (iii) the Borrower shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitments and the Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date thereunder and the same Applicable Margins application of the proceeds therefrom as if made and applied on such date.
(d) Each of the Tranche of Term Loans parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to which the new ensure that (i) all Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental other than Other Term Loans) in the form of additional Term B Loans, and notwithstanding anything to the contrary set forth when originally made, are included in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term B Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of the various outstanding BorrowingsIncremental Revolving Facility Commitments (other than Other Revolving Loans), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates when originally made, are included in each outstanding Borrowing of Term outstanding Revolving Facility Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrower agrees that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Eurocurrency Loans to the then outstanding Borrowings of LIBO Rate ABR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations reasonably required by any the Administrative Agent of to effect the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretoforegoing.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may shall have the right to request at any time and from time to time request that one or more Lenders (or and/or one or more other Persons which are Eligible Transferees who and which will become Lenders, subject to the terms set forth in this Section 2.15) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to the Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that that:
(i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by the Borrower, ;
(ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, ;
(iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, U.S. Dollars;
(iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, 25,000,000;
(v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu NotesLoans, Permitted Pari Passu Loans Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(110.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, ;
(vi) the proceeds of all Incremental Facilities incurred by the Borrower may be used for any purpose not prohibited under this Agreement, ;
(vii) the Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, ;
(viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; providedMaturity (in each case of the foregoing clauses (a) and (b), howeverexcluding for this purpose (x) interim loan financings that provide for automatic rollover, that Extendable Bridge Loans may have a maturity date earlier than subject to customary conditions, to Indebtedness otherwise meeting the Latest requirements of this clause (I) and (y) amounts not in excess of the Inside Maturity Date Basket at the time of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, incurrence); (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, that if the Effective Yield for any such Incremental Term Loans or any Permitted Pari Passu Loans, in each case which constitute MFN Qualifying Term Loans, exceeds the Effective Yield then applicable to any then outstanding Initial Term B-3-4 Loans by more than 0.50% per annum, the Applicable Margins for such all then outstanding Initial Term B-3-4 Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% ” (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may be pursuant to documentation to be agreed between the Borrower and the applicable lenders providing the Incremental Term Loans and, solely to the extent administrative matters applicable to Administrative Agent in its capacity as such are set forth therein, that is reasonably acceptable to the Administrative Agent and may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative AgentAgent (provided that to the extent such documentation and terms are not consistent with the terms of, and documentation governing, the Term B-3-4 Loans, such terms (if favorable to the existing Lenders) shall be automatically incorporated into the Credit Documents for the benefit of all existing Lenders without further amendment requirements, including, for the avoidance of doubt, at the option of the Borrower, any increase in the Applicable Margin or amount of amortization relating to the existing Term Loans to bring such Applicable Margin or amount of amortization in line with the Incremental Term Loans to achieve fungibility with such existing Term Loans);
(ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial 2023 Revolving Loans and the Closing Date 2023 Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial 2023 Revolving Loans (Loans, including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial 2023 Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Applicable Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate Rate applicable to the Initial 2023 Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial 2023 Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Revolving Commitments shall be reduced based on each Lender’s Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment IncreasePercentage, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial 2023 Revolving Loans, ;
(x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, ;
(xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are shall not materially more favorable require any scheduled amortization or mandatory commitment reduction prior to the Lenders providing such Latest Maturity Date of the 2023 Revolving Loans and 2023 Revolving Commitments than and shall be on substantially the provisions same terms as those applicable to the existing 2023 Revolving Loans and 2023 Revolving Commitments (other than as set forth herein or as are otherwise reasonably satisfactory acceptable to the Administrative Agent, );
(xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrower shall be Obligations of the Borrower under this Agreement and the other applicable Credit Documents and shall shall, to the extent secured, be secured by the Security AgreementAgreements, and guaranteed under each relevant Guaranty, on a pari passu basis or junior basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty Agreement and shall not be secured by any assets that do not constitute only the Collateral for securing the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, Obligations hereunder;
(xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans Commitment Increases, Additional/Replacement Revolving Commitments and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and Documents; and
(xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, the Borrower, the Administrative Agent and each such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which shall not require the consent of any other Lender), with the effectiveness of the Incremental Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment shall have been delivered to the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at the Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), that the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date maturity date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis)) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.092.07, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b2.01(c)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate SOFR Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate SOFR Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, Adjusted Term SOFR in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and or from time to time after the Effective Date, by notice to the Administrative Agent, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase increases in Revolving the amount of the Commitments (each such increase, a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, provided that (i) no Lender shall be obligated to provide an Incremental Facility as a result both at the time of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without and upon the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount effectiveness of any Incremental Facility made available pursuant Amendment referred to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or Commitment, as applicable, pursuant to an Incremental Facility on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such datebelow, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus no Default shall exist and (y) subject all representations and warranties in this Agreement or any other Loan Document shall be true and correct in all material respects and (ii) the aggregate amount of all Commitment Increases pursuant to this Section 2.20, when added to the satisfaction initial aggregate amount of the applicable Incurrence-Based Incremental Facility TestLenders’ Commitments on the Effective Date, any Incurrence-Based Incremental Amount shall not exceed $1,000,000,000. Each Commitment Increase shall be in an aggregate principal amount that is not less than $20,000,000 (provided that such amount may be incurred thereunder on less than $20,000,000 if such date, (vi) amount represents all remaining availability under the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be limit set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have next sentence). Each notice from the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.152.20 shall set forth the requested amount of the relevant Commitment Increase. Commitment Increases may be provided, Borrowerby any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that the Administrative Agent and each shall have consented (such Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline Lender (not to be unreasonably withheld or delayed) to the extent such consent, Lender’s or Additional Lender’s providing such Commitment Increases if any, such consent would be required under Section 13.04(b) 9.04 for an assignment of Revolving Loans or Commitments, as applicable, to such PersonLender or Additional Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Commitment) or other Eligible Transferee which agrees under this Agreement pursuant to provide an Incremental Commitment amendment (each, an “Incremental LenderAmendment”) shall execute to this Agreement, executed by the Borrower, each Lender agreeing to provide such Commitment Increase, if any, each Additional Lender, if any, and deliver to the Administrative Agent an Agent. The Incremental Amendment (which shall not require may, without the consent of any other Lender)Lenders, with effect such amendments to this Agreement as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20. The effectiveness of any Incremental Amendment shall be subject to the Incremental Commitment provided therein to occur satisfaction on the date on which (w) a fully executed copy thereof of such Incremental Amendment shall have been delivered to each of the Administrative Agent, (x) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing to the Administrative Agent to the extent it served as the arranger for the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in Section 4.02 (it being understood that all references to “the occasion of any Borrowing” or “issuance, amendment, renewal or extension of a Letter of Credit” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Commitment Increases, unless it so agrees. Upon each increase in the Commitments pursuant to this Section 2.15 2.20, (a) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Commitment Increase (each, a “Commitment Increase Lender”) in respect of such increase, and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender (including each such Commitment Increase Lender) will equal the percentage of the Total Commitment represented by such Lender’s Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall have been satisfiedon or prior to the effectiveness of such Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.15. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall promptly notify each Lender as not apply to the effectiveness of each Incremental Amendment, and at such time, (i) Schedule 2.01 shall be deemed modified to reflect the revised Incremental Commitments of the affected Lenders and (ii) to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lender.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15, the Incremental Term Loan Commitments provided by an Incremental Lender or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
(i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender holding Term Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances transactions effected pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties heretosentence.
(db) Subject to compliance with the other applicable requirements set forth This Section 2.20 shall supersede any provisions in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of 2.17 or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect 9.02 to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loanscontrary.
Appears in 1 contract
Incremental Commitments. (a) The Borrower may at any time and may, by written notice to the Administrative Agent from time to time time, request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”), one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant in an amount not to an exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Facility on Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the date case may be, in their own discretion, provided that each Incremental Term Lender and/or Incremental Revolving Facility shall be subject to the approval of the incurrence thereof Administrative Agent (which approval shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes, Permitted Pari Passu Loans or Permitted Junior Debt be unreasonably withheld) unless no consent would be required for an assignment to such person pursuant to Section 10.04(xxvii)(1) on such date, 9.04(b)(i)(B). Such notice shall set forth (xi) the then-remaining Fixed Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder requested (which Tranche shall be in minimum increments of $10 million and a new Tranche minimum amount of $25 million or equal to the remaining Incremental Amount), (i.e., not ii) the same as any existing Tranche of Incremental Term Loans, date on which such Incremental Term Loan Commitments or other Term Loansand/or Incremental Revolving Facility Commitments are requested to become effective (the “Increased Amount Date”), unless the requirements of Section 2.15(cand (iii) are satisfied), which designation shall be set forth (a) in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche case of Incremental Term LoansLoan Commitments, whether such Incremental Term Loans shall have Loan Commitments are to be Term B Loan Commitments or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term B Loans (unless the holders of the Incremental “Other Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (ILoans”) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and and/or (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to whether such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto Revolving Facility Commitments are to be specified in Revolving Facility Commitments or commitments to make revolving loans with pricing different from the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Revolving Facility Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing TestOther Revolving Loans”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) the terms and provisions of any Revolving Commitment Increase shall be identical to the Initial Revolving Loans and the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including, without limitation, the following: (A) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving Loans, (B) unused line fees, fronting fees and letter of credit participation fees applicable to the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (E) after giving effect to such Revolving Commitment Increases, the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, and (E) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all Incremental Term Loans and Incremental Revolving Loans (and all interest, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied.
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative Agent The Borrower and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the Borrower and the Incremental Term Lenders in their sole discretion), the Other Term Loans shall have been delivered (x) the same terms as the Term B Loans or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term Loans shall be no earlier than the then Latest Maturity Date, (iii) the Weighted Average Life to Maturity of any Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans, (iv) except as to pricing (which shall, subject to clause (v) of this proviso, be determined by the Borrower and the Incremental Revolving Facility Lenders in their sole discretion), the Other Revolving Loans shall have (x) all fees required to the same terms as the Revolving Facility or (y) such other terms as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent and (v) in the event that the Applicable Margin (at any analogous point in the Pricing Grid) for any Incremental Term Loan or Incremental Revolving Loan is greater than the Applicable Margin for the existing Term Loans or existing Revolving Loans, as applicable, by more than 25 basis points, then the Applicable Margin for the existing Term Loans or existing Revolving Facility Loans, as applicable, shall be increased to the extent it served as necessary so that the arranger Applicable Margin (at each analogous point in the Pricing Grid) for the Incremental CommitmentsTerm Loans or existing Revolving Loans, as applicable, is 25 basis points higher than the Applicable Margin for the existing Term Loans or existing Revolving Facility Loans, as applicable; provided, further, that in determining the Applicable Margin applicable to the existing Term Loans or existing Revolving Facility Loans, as applicable, and the Incremental Term Loans or Incremental Revolving Loans, as applicable, (x) original issue discount or upfront or similar fees (collectively, “OID”) payable by the Borrower to the Lenders of the existing Term Loans or the Incremental Term Loans (or the existing Revolving Facility Loans or the Incremental Revolving Loans, as applicable), in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity), (y) all Incremental Commitment Requirements are satisfied, customary arrangement or commitment fees payable to arrangers (or their respective affiliates) shall be excluded; and (z) all other conditions set forth if the ABR or Eurocurrency Rate “floor” for the Incremental Term Loans or Incremental Revolving Loans, as applicable, is greater than the ABR or Eurocurrency Rate “floor,” respectively, for the existing Term Loans or existing Revolving Facility Loans, as applicable, the difference between such floor for the Incremental Term Loans and the existing Term Loans (or the Incremental Revolving Loans and the existing Revolving Facility Loans, as applicable) shall be equated to an increase in the Applicable Margin for purposes of this Section 2.15 shall have been satisfiedclause (v). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental AmendmentAssumption Agreement. Each of the parties hereto hereby agrees that, and at such timeupon the effectiveness of any Incremental Assumption Agreement, (i) Schedule 2.01 this Agreement shall be deemed modified amended to the extent (but only to the extent) necessary to reflect the revised Incremental Commitments existence and terms of the affected Lenders Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(f). Any such deemed amendment may be memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld) and (ii) furnished to the extent requested by any Incremental Lender, Term Notes or Revolving Notes, as applicable, will be issued at Borrower’s expense to such Incremental Lender, to be in conformity with the requirements of Section 2.05 (with appropriate modification) to the extent needed to reflect the new Incremental Loans and Incremental Commitments made by such Incremental Lenderother parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental Lenders, as the case may be, pursuant to each Incremental Amendment Revolving Facility Commitment shall constitute a new Tranche, which shall be separate and distinct from the existing Tranches pursuant to become effective under this Agreement; provided that, with the consent of the Administrative Agent (not to be unreasonably withheld, delayed or conditioned), the parties to a given Incremental Amendment may specify therein that the Incremental Term Loans made pursuant thereto shall constitute part of, and be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
Section 2.22 unless (i) the Incremental Term Loans to be made pursuant to such Incremental Amendment shall have the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of such effectiveness, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (ii) the making of Borrower shall be in Pro Forma Compliance after giving effect to such new Incremental Term Loans, Loan Commitments and/or Incremental Revolving Facility Commitments and notwithstanding anything the Loans to be made thereunder and the contrary set forth in Section 2.09, application of the proceeds therefrom as if made and applied on such new date.
(d) 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 (i) all Incremental Term Loans shall be added to (and other than Other Term Loans) in the form part of) of additional Term B Loans, when originally made, are included in each Borrowing of outstanding Term B Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of the various outstanding Borrowings)Incremental Revolving Facility Commitments that are Revolving Facility Commitments, so that each Lender holding Term Loans under the respective Tranche of Term Loans participates when originally made, are included in each outstanding Borrowing of Term outstanding Revolving Facility Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To The Borrower agrees that Section 2.17 shall apply to any conversion of Eurocurrency Loans to ABR Loans reasonably required by the extent Administrative Agent to effect the provisions of the preceding clause foregoing.
(iiie) require that Incremental Lenders making new The Incremental Term Loans add such and Incremental Revolving Loans shall rank pari passu in right of payment and of security with the Term Loans to the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
(d) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
(i) the Lenders with respect to the relevant series of Term Loans and/or Commitments being extended, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (and on the same terms) and
(ii) the amount of any Incremental Term Loans does not exceed the sum of (x) the principal amount of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Revolving Facility Loans.
Appears in 1 contract
Sources: Credit Agreement (TII Smart Solutions, Sociedad Anonima)
Incremental Commitments. (a) The Borrower may at any time and Agent may, by written notice to the Administrative Agent from time to time request one or more Lenders (or one or more Eligible Transferees who will become Lenders) to provide an increase in Revolving Commitments (a “Revolving Commitment Increase”)time, one or more additional Tranches of Revolving Commitments (an “Additional/Replacement Revolving Commitment”) or establish Incremental Term Loan Commitments (such Term Loans incurred in connection therewith, each, an “and/or Incremental Term Loan” and, collectively, the “Incremental Term Loans” and, collectively with any Revolving Commitment Increase and any Additional/Replacement Revolving Commitment, each, an “Incremental Facility” and collectively, the “Incremental Facilities”) to Borrower and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Amendment, provide commitments and/or make Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Facility as a result of any such request by Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Facility without the consent of any other Lender, (iii) each Incremental Facility shall be denominated in Dollars or an Alternative Currency, (iv) the amount of any Incremental Facility made available pursuant to a given Incremental Amendment shall be in a minimum aggregate amount for all Lenders which provide such Incremental Facility thereunder (including Eligible Transferees who will become Lenders) of at least $10,000,000, (v) the aggregate principal amount of any Loan or CommitmentCommitments, as applicable, pursuant with respect to any Borrowers in an amount not to exceed the Incremental Facility on Amount available at the date time such Incremental Commitments are established (or at the time any commitment relating thereto is entered into or, at the option of the incurrence thereof shall not exceedBorrower Agent, when taken together with any at the time of incurrence of the Incremental Loans thereunder or, with respect to any Incremental Term Loan Commitment and/or Incremental Revolving Facility Commitment established for purposes of financing any Permitted Pari Passu NotesBusiness Acquisition or any other acquisition or similar Investment that is permitted by this Agreement, Permitted Pari Passu Loans or Permitted Junior Debt pursuant to Section 10.04(xxvii)(1) on such date, (x) the then-remaining Fixed Incremental Amount as of the date of incurrence plus the definitive agreement with respect to such Permitted Business Acquisition, acquisition or similar Investment is entered into) from one or more Incremental Term Lenders and/or Incremental Revolving Facility Lenders (ywhich may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Facility Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Facility Lender providing a commitment to make revolving loans shall be subject to the satisfaction approval of the applicable Incurrence-Based Administrative Agent and, to the extent the same would be required for an assignment under Section 9.04(g) and the Issuing Banks (which approvals shall not be unreasonably withheld or delayed), in each case, unless such Incremental Revolving Facility Test, any Incurrence-Based Lender is a Revolving Facility Lender prior to the establishment of such Incremental Amount that may be incurred thereunder on such date, Revolving Facility Commitments. Such notice shall set forth (vii) the proceeds of all Incremental Facilities incurred by Borrower may be used for any purpose not prohibited under this Agreement, (vii) Borrower shall specifically designate, in consultation with the Administrative Agent, any Tranche amount of the Incremental Term Loan Commitments and/or Incremental Revolving Facility Commitments being provided thereunder established (which Tranche shall be in minimum increments of $5,000,000 and a new Tranche (i.e.minimum aggregate amount of $10,000,000, not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior equal to the effectiveness of the relevant remaining Incremental Amendment, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as, such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Term Loans Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity; provided, however, that Extendable Bridge Loans may have a maturity date earlier than the Latest Maturity Date of all then outstanding Term Loans and the Weighted Average Life to Maturity thereof may be shorter than the then longest remaining Weighted Average Life to Maturity of any then outstanding Term Loans, (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Amendment; provided, however, that, solely with respect to any syndicated Incremental Term Loan denominated in Dollars, if the Effective Yield for any such Incremental Term Loans exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.50% per annum, the Applicable Margins for such then outstanding Initial Term Loans shall be increased as of such date (in accordance with the requirements of the definition of “Applicable Margin”) so that the difference between the Effective Yield with respect to such new Incremental Term Loans and the corresponding Effective Yield on such then outstanding Initial Term Loans is equal to 0.50% (the “MFN Pricing Test”); and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term LoansAmount or, in each case, taken as a wholesuch lesser amount approved by the Administrative Agent), that are not materially more favorable to (ii) the lenders providing date on which such Incremental Term Loans than the provisions applicable Loan Commitments and/or Incremental Revolving Facility Commitments are anticipated to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agentbecome effective, (ixiii) in the case of Incremental Revolving Facility Commitments, whether such Incremental Revolving Facility Commitments are to be (x) commitments to make additional Revolving Facility Loans on the same terms and provisions of any Revolving Commitment Increase shall be identical to as the Initial Revolving Loans and or (y) commitments to make revolving loans with pricing terms, final maturity dates, participation in mandatory prepayments or commitment reductions and/or other terms different from the Closing Date Revolving Commitments, and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Initial Revolving Loans (including“Other Revolving Loans”) and (iv) in the case of Incremental Term Loan Commitments, without limitationwhether such Incremental Term Loan Commitments are to be (x) commitments to make term loans on the same terms as the 2024 Refinancing Term B Loans or (y) commitments to make term loans with pricing, the following: maturity, amortization, participation in mandatory prepayments and/or other terms different from (Axw) the rate of interest applicable at all times on and prior to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the Initial Revolving First Amendment Effective Date (before giving effect thereto), Term B Loans, (Byx) unused line fees, fronting fees at all times on and letter of credit participation fees applicable to after the Revolving Commitment Increase shall be calculated using the same Commitment Fee Rate, LC Participation Fee rate First Amendment Effective Date (after giving effect thereto) and Fronting Fee rate applicable to the Initial Revolving Loans, (C) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Initial Revolving Loans, (D) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of Second Amendment Effective Date, the Revolving Commitments that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase)2023 Refinancing Term B Loans and, (Ezy) at all times on and after the Second Amendment Effective Date (after giving effect to such Revolving Commitment Increasesthereto), the Pro Rata Percentage of the Revolving Commitments of each Lender may be adjusted to give effect to the total Revolving Commitment as increased by such Revolving Commitment Increase, 2024 Refinancing Term B Loans and (Ez) at all times on and after the Revolving Commitment Increase shall rank pari passu in right of payment and security with Fourth Amendment Effective Date (after giving effect thereto), the Initial Revolving Loans, (x) the maturity, interest rate and fees of any Tranche of Additional/Replacement Revolving Commitments may differ, so long as such Tranche of Revolving Loans made under the Additional/Replacement Revolving Commitments shall have a maturity date of no earlier than the then latest maturing Tranche of outstanding Revolving Loans, (xi) any Tranche of the Additional/Replacement Revolving Commitments may have other terms that may differ from those of other Tranches of Revolving Commitments, taken as a whole, that are not materially more favorable to the Lenders providing such Revolving Commitments than the provisions applicable to the existing Revolving Commitments or as are otherwise reasonably satisfactory to the Administrative Agent, (xii) all 2024 Incremental Term Loans and Incremental Revolving B Loans (and all interestsuch term loans at any given time, fees and other amounts payable thereon) incurred by Borrower shall be Obligations of Borrower under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreement, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Loans secured by the Security Agreement and guaranteed under such Guaranty Agreement and shall not be secured by any assets that do not constitute Collateral for the outstanding Loans or be guaranteed by any guarantors that are not Credit Parties, (xiii) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Commitment pursuant to an Incremental Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Revolving Loans and/or Incremental Term Loans under the Tranche specified in such Incremental Amendment as provided in Section 2.01(c) (with respect to Incremental “Other Term Loans) and applicable Incremental Amendment (with respect to Incremental Revolving Loans) and such Loans shall thereafter be deemed to be Incremental Revolving Loans or Incremental Term Loans under such Tranche, as applicable, for all purposes of this Agreement and the other applicable Credit Documents and (xiv) all Incremental Commitment Requirements are satisfied”).
(b) At the time of the provision of Incremental Commitments pursuant to this Section 2.15, Borrower, the Administrative The Borrower Agent and each such Incremental Term Lender (with the consent of the Administrative Agent, each Issuing Bank and the Swingline and/or Incremental Revolving Facility Lender (not to be unreasonably withheld or delayed) to the extent such consent, if any, would be required under Section 13.04(b) for an assignment of Loans to such Person) or other Eligible Transferee which agrees to provide an Incremental Commitment (each, an “Incremental Lender”) shall execute and deliver to the Administrative Agent an Incremental Amendment (which Assumption Agreement and such other documentation as the Administrative Agent shall not require the consent of any other Lender), with the effectiveness of reasonably specify to evidence the Incremental Term Loan Commitment provided therein to occur on the date on which (w) a fully executed copy of such Incremental Amendment Term Lender and/or Incremental Revolving Facility Commitment of such Incremental Revolving Facility Lender. Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Facility Commitments; provided, that:
(i) any commitments to make additional 2024 Refinancing Term B Loans, 2024 Incremental Term B Loans and/or additional Initial Revolving Loans shall have been delivered the same terms as the 2024 Refinancing Term B Loans, 2024 Incremental Term B Loans or Initial Revolving Loans, respectively,
(ii) the Other Term Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower Agent, junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans and the 2024 Incremental Term Loans or be unsecured (provided, that if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor Agreement and, for the avoidance of doubt, if such Other Term Loans rank junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans or are unsecured, such Other Term Loans shall not be subject to clause (vii) below),
(iii) (A) the final maturity date of any such Other Term Loans shall be no earlier than the Term Facility Maturity Date applicable to each of the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans and (B) except as to pricing, amortization, final maturity date, participation in mandatory prepayments and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower Agent and the Incremental Term Lenders in their sole discretion), shall have (x) substantially similar terms as the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans or (y) such other terms (including as to guarantees and collateral) as shall be reasonably satisfactory to the Administrative Agent,
(iv) the Weighted Average Life to Maturity of any such Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of each of the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans,
(v) the Other Revolving Loans incurred pursuant to clause (a) of this Section 2.21 shall rank pari passu or, at the option of the Borrower Agent, junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans or be unsecured (provided, that if such Other Revolving Loans rank junior in right of security with the Liens on the Collateral securing the Initial Revolving Loans, such Other Revolving Loans shall be subject to a Permitted Junior Intercreditor Agreement),
(vi) the final maturity date of any such Other Revolving Loans shall be no earlier than the Revolving Facility Maturity Date with respect to the Initial Revolving Loans and, except as to pricing, final maturity date, participation in mandatory prepayments and commitment reductions and ranking as to security (which shall, subject to the other clauses of this proviso, be determined by the Borrower Agent and the Incremental Revolving Facility Lenders in their sole discretion), such Other Revolving Loans shall have (x) all fees required substantially similar terms as the Initial Revolving Loans or (y) such other terms (including as to guarantees and collateral) as shall be paid in connection therewith at the time of such effectiveness shall have been paid (including, without limitation, any agreed upon upfront or arrangement fees owing reasonably satisfactory to the Administrative Agent Agent,
(vii) with respect to any Subject Term Loan, the All-in Yield of the Subject Term Loan shall not exceed the All-in Yield applicable to the (a) 2024 Refinancing Term B Loans on the Second Amendment Effective Date or (b) 2024 Incremental Term B Loans on the Fourth Amendment Effective Date, except that the All-in Yield in respect of any such Subject Term Loan may exceed the All-in Yield in respect of such (a) 2024 Refinancing Term B Loans on the Second Amendment Effective Date byand/or (b) 2024 Incremental Term B Loans on the Fourth Amendment Effective Date by, in each case, no more than 0.50%, or if it does so exceed such All-in Yield by more than 0.50% (such difference, the “Term Yield Differential”) then the Applicable Margin (or the “SOFR floor” as provided in the following proviso) applicable to such 2024 Refinancing Term B Loans or 2024 Incremental Term B Loans, as applicable, shall be increased such that after giving effect to such increase, the Term Yield Differential shall not exceed 0.50%; provided that, to the extent it served as any portion of the arranger for Term Yield Differential is attributable to a higher “Term SOFR floor” being applicable to such Subject Term Loan, such floor shall only be included in the Incremental Commitments), (y) all Incremental Commitment Requirements are satisfied, and (z) all other conditions set forth in this Section 2.15 shall have been satisfied. The Administrative Agent shall promptly notify each Lender as calculation of the Term Yield Differential to the effectiveness extent such floor is greater than the Adjusted Term SOFR in effect for an Interest Period of each Incremental Amendment, and three months’ duration at such time, (i) Schedule 2.01 shall be deemed modified and, with respect to reflect such excess, the revised Incremental Commitments of the affected Lenders and (ii) “Term SOFR floor” applicable to the extent requested by any outstanding 2024 Refinancing Term B Loans or 2024 Incremental Lender, Term Notes or Revolving NotesB Loans, as applicable, will shall be issued at Borrower’s expense increased to an amount not to exceed the “Term SOFR floor” applicable to such Subject Term Loan prior to any increase in the Applicable Margin applicable to such 2024 Refinancing Term B Loans or 2024 Incremental LenderTerm B Loans, as applicable, then outstanding; provided, further, that this clause (vii) shall not be applicable to be any Subject Term Loan that (A) is initially incurred under clauses (i) or (iii) under the definition of “Incremental Amount” and/or (B) has a maturity date that is at least two (2) years after the Term Facility Maturity Date applicable to the 2024 Refinancing Term B Loans or the 2024 Incremental Term B Loans, as applicable (this clause (vii), the “MFN Provision”); provided, further that, with respect to the 2024 Incremental Term B Loans, the MFN Provision shall only apply to Subject Term Loans that are incurred after the Fourth Amendment Effective Date and on or prior to the 12 month anniversary of the Fourth Amendment Effective Date;
(viii) (A) such Other Revolving Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in conformity the case of Other Revolving Loans secured by Liens that are junior in right of security with the requirements Liens on the Collateral securing the Initial Revolving Loans, on a junior basis) than the Initial Revolving Loans in (x) any voluntary or mandatory prepayment or commitment reduction hereunder and (y) any Borrowing at the time such Borrowing is made and (B) such Other Term Loans may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) (and, in the case of Section 2.05 Other Term Loans secured by Liens that are junior in right of security with the Liens on the Collateral securing the 2024 Refinancing Term B Loans and the 2024 Incremental Term B Loans, in each case, on a junior basis) than the 2024 Refinancing Term B Loans and/or the 2024 Incremental Term B Loans in any mandatory prepayment hereunder; and
(with appropriate modificationA) there shall be no obligor in respect of any Incremental Term Loan Commitments or Incremental Revolving Facility Commitments that is not a Loan Party and (B) no Incremental Term Loan Commitments or Incremental Revolving Facility Commitments shall be secured by any assets that do not constitute Collateral. Each party hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement and any other Loan Documents shall be amended to the extent needed (but only to the extent) necessary to reflect the new existence and terms of the Incremental Loans Term Loan Commitments and/or Incremental Revolving Facility Commitments evidenced thereby as provided for in Section 9.08(e). Any amendment to this Agreement or any other Loan Document that is necessary to effect the provisions of this Section 2.21 and Incremental Commitments made any such collateral and other documentation shall be deemed “Loan Documents” hereunder and may be memorialized in writing by such Incremental Lenderthe Administrative Agent, the Borrower Agent and any other applicable Borrower and furnished to the other parties hereto.
(c) Notwithstanding anything to the contrary contained above in this Section 2.15foregoing, the no Incremental Term Loan Commitments provided by an Incremental Lender Commitment or Incremental LendersRevolving Facility Commitment shall become effective under this Section 2.21 unless (i) on the date of such effectiveness, as (A) solely to the case may beextent required by the relevant Incremental Assumption Agreement, pursuant to each Incremental Amendment shall constitute a new Tranche, which the conditions set forth in clause (c) of Section 4.01 shall be separate satisfied and distinct from the existing Tranches pursuant to this Agreement; provided that, with the consent of the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower Agent and (not B) (I) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established to be unreasonably withheldfinance any Permitted Business Acquisition or any other similar permitted Investment, delayed or conditionedno Event of Default under Section 7.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom or (II) if such Incremental Term Loan Commitment or Incremental Revolving Facility Commitment is established for any other purpose, no Default or Event of Default shall have occurred or be continuing or would result therefrom and (ii) the parties Administrative Agent shall have received customary legal opinions, board resolutions and other customary closing certificates and documentation to the extent required by the relevant Incremental Assumption Agreement and, to the extent required by the Administrative Agent, consistent with those delivered on the Closing Date under Section 4.02 and such additional customary documents and filings (including amendments or supplements to the Collateral Documents, as applicable, and modification endorsements, which, in the case of such amendments or supplements and modification endorsements, may be delivered on a given post-closing basis to the extent permitted by the applicable Incremental Amendment Assumption Agreement, the relevant Collateral Documents or hereunder) as the Administrative Agent may specify therein reasonably request to assure that the Incremental Term Loans made pursuant thereto shall constitute part ofand/or Revolving Facility Loans in respect of Incremental Revolving Facility Commitments are secured by Liens on the Collateral ratably with (or, to the extent set forth in the applicable Incremental Assumption Agreement, junior to) one or more Classes of then-existing Term Loans and Revolving Facility Loans.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be added to, an existing Tranche of Term Loans, in any case so long as the following requirements are satisfied:
reasonably necessary to ensure that (i) the all Incremental Term Loans to be made pursuant to such Incremental Amendment shall have (other than Other Term Loans of a different Class), when originally made, are included in each Borrowing of the same Borrower, the same Maturity Date and the same Applicable Margins as the Tranche outstanding applicable Class of Term Loans to which the new Incremental Term Loans are being added;
(ii) the new Incremental Term Loans shall have the same Scheduled Repayment Dates as then remain with respect to the Tranche to which such new Incremental Term Loans are being added (with the amount of each Scheduled Repayment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as is theretofore applicable to the Tranche to which such new Incremental Term Loans are being added, thereby increasing the amount of each then remaining Scheduled Repayment of the respective Tranche proportionately); and
(iii) on the date of the making of such new Incremental Term Loans, and notwithstanding anything to the contrary set forth in Section 2.09, such new Incremental Term Loans shall be added to (and form part of) each Borrowing of outstanding Term Loans of the applicable Tranche on a pro rata basis basis, and (based on the relative sizes ii) all Revolving Facility Loans in respect of Incremental Revolving Facility Commitments (other than Revolving Facility Loans of a different Class), when originally made, are included in each Borrowing of the various applicable Class of outstanding Borrowings), so that each Lender holding Term Revolving Facility Loans under the respective Tranche of Term Loans participates in each outstanding Borrowing of Term Loans of the respective Tranche (after giving effect to the incurrence of such new Incremental Term Loans pursuant to Section 2.01(b)) on a pro rata basis. To the extent the provisions The Borrowers agree that Section 2.16 shall apply to any conversion of the preceding clause (iii) require that Incremental Lenders making new Incremental Term Loans add such Incremental Term SOFR Loans to ABR Loans reasonably required by the then outstanding Borrowings of LIBO Rate Loans of such Tranche, it is acknowledged that Administrative Agent to effect the effect thereof may result in such new Incremental Term Loans having irregular Interest Periods foregoing.
(i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of such Tranche and which will end on the last day of such Interest Period), which irregular interest periods shall be permitted notwithstanding e) Notwithstanding anything to the contrary in this Agreement. All determinations by any the Administrative Agent of the LIBO Rate, in such circumstances pursuant including Section 2.18(c) (which provisions shall not be applicable to the immediately preceding sentence shall, absent manifest error, be final and conclusive and binding on all parties hereto.
clauses (de) Subject to compliance with the other applicable requirements set forth in this Section 2.15, any new Incremental Term Loan may be established and incurred as a means of effectively extending the maturity of, effecting a repricing of or a refinancing, in whole or in part without utilizing the capacity under any incurrence tests or fixed baskets for other Incremental Term Loans, of any applicable Term Loans then outstanding so long as:
through (i) of this Section 2.21), pursuant to one or more offers made from time to time by the Borrower Agent to all Lenders with respect to the relevant series of any Class of Term Loans and/or Commitments being extendedRevolving Facility Commitments, repriced or refinanced are offered the opportunity to participate in such transaction on a pro rata basis (based, in the case of an offer to the Lenders under any Class of Term Loans, on the aggregate outstanding Term Loans of such Class and, in the case of an offer to the Lenders under any Revolving Facility, on the aggregate outstanding Revolving Facility Commitments under such Revolving Facility, as applicable) and on the same terms) and
terms (ii) “Pro Rata Extension Offers”), the amount Borrower Agent is hereby permitted to consummate transactions with individual Lenders from time to time to extend the maturity date of any Incremental Term such Lender’s Loans does not exceed and/or Commitments of such Class and to otherwise modify the sum terms of (x) such Lender’s Loans and/or Commitments of such Class pursuant to the principal amount terms of the applicable Term Loans effectively being extended, repriced or refinanced, (y) fees and expenses (including any prepayment premium, penalties or other call protection) related to such extension, repricing or refinancing, and (z) fees and expenses (including any upfront fees, original issue discount, underwriting discounts, amendment fees, commissions and arrangement, underwriting and similar fees) related to the establishment and incurrence of such Incremental Term Loans.relevant Pro Rata Extension Of
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Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)